[Federal Register: December 14, 2004 (Volume 69, Number 239)]
[Notices]
[Page 74522-74525]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14de04-82]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-7846-4]
Water Pollution Control; State Program Requirements; Program
Modification Application by Ohio To Administer the Sewage Sludge
Management Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of application and public comment period.
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SUMMARY: Pursuant to 40 CFR 123.62 and 40 CFR part 501, the State of
Ohio has submitted a program modification application to EPA, Region 5
to administer and enforce a sewage sludge management program.
Specifically, the State is seeking approval of a sewage sludge
management program which addresses the land application of sewage
sludge, surface disposal of sewage sludge, and the landfilling of
sewage sludge. Ohio is not seeking approval of the land application of
domestic septage. Also, Ohio is not seeking approval for the
incineration of sewage sludge at this time, but will in the future.
Ohio will seek approval for the incineration of sewage sludge when
their current draft administrative rules for incineration of sewage
sludge are adopted. The State's sewage sludge management program will
not extend to
[[Page 74523]]
``Indian Country'' as defined in 18 U.S.C. 1151, and will not include
lands within the exterior boundaries of Indian reservations within or
abutting the State of Ohio. According to the State's application, this
program would be administered by the Ohio Environmental Protection
Agency (Ohio EPA).
The application from Ohio is complete and is available for
inspection and copying. Public comments are requested and encouraged.
DATES: The public comment period on the State's request for approval to
administer the proposed Ohio NPDES sewage sludge management program
will be from the date of publication until January 28, 2005. Comments
postmarked after this date may not be considered.
ADDRESSES: Viewing/Obtaining Copies of Documents. You can view Ohio's
application for modification from 8:00 a.m. until 4 p.m. (Eastern time
zone) Monday through Friday, excluding holidays, at the Ohio EPA,
Lazarus Government Center, Division of Surface Water, 122 S. Front St.,
Columbus, Ohio 43215, contact Suzanne Matz (614) 644-2034; Ohio EPA
Southeast District Office, 2195 Front Street, Logan, Ohio 43138,
contact Jeanne Chapman (740) 380-5425; Ohio EPA Southwest District
Office, 401 E. Fifth St., Dayton, Ohio 45402-2911, contact Sally Brown
(937) 285-6025; Ohio EPA Northwest District Office, 347 N. Dunbridge
Rd., Bowling Green, Ohio 43402, contact Megan Carr (419) 373-3003; and,
Ohio EPA Northeast District Office, 2110 E. Aurora Rd., Twinsburg, Ohio
44087, contact Lily Aaron (330) 963-1200 extension 129. A copy of
Ohio's application for modification is also available for viewing from
9 am to 4 pm, Monday through Friday, excluding legal holidays, at EPA
Region 5, 16th floor, NPDES Programs Branch, 77 West Jackson Blvd.,
Chicago, IL 60604. Part or all of the State's application may be
copied, for a minimal cost per page, at Ohio EPA's offices or EPA's
office in Chicago. Ohio EPA's submission documents are also available
on the Internet at: http://www.epa.state.oh.us/dsw/sludge/biosolid.html
.
Comments. Electronic comments are encouraged and should be
submitted to
colletti.john@epa.gov Please send a copy to suzanne.matz@epa.state.oh.us.. Written comments may be sent to John
Colletti (WN-16J), EPA, Region 5, 77 West Jackson Blvd., Chicago, IL
60604. Please send an additional copy to Ohio EPA, Attn: Suzanne Matz,
Permits and Compliance Section, P.O. Box 1049, Columbus, OH 43216-1049.
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 9.0 format or Microsoft Word 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: John Colletti at (312) 886-6106, or by
e-mail at colletti.john@epa.gov.
SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' or
``our'' means EPA.
Table of Contents
I. Background
II. Sewage Sludge and the State Sewage Sludge Management Program
III. Indian Country
IV. Public Notice and Comment Procedures
V. Public Hearing Procedures
VI. EPA's Decision
VII. Other Federal Statutes
A. National Historic Preservation Act
B. Endangered Species Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
I. Background
Under section 402 of the Clean Water Act (CWA), 33 U.S.C. 1342, 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 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 Federal 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. To obtain such
approval, the state must show, among other things, that it has
authority to issue permits which comply with the Act, authority to
impose civil and criminal penalties for permit violations, and
authority to ensure that the public is given notice and opportunity for
a hearing on each proposed permit. The requirements for state sewage
sludge management program approval are listed in 40 CFR part 501.
The Ohio NPDES program was approved by EPA on March 11, 1974. EPA
received the sewage sludge management program application from Ohio on
May 28, 2004. Ohio's application for the sewage sludge 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 5 and the Director of Ohio EPA. The State, based on comments
from EPA, submitted a revision of its Program Description and MOA,
which EPA received on September 28, 2004.
The Governor's letter of May 12, 2004, requested that EPA approve
the State's sewage sludge management program as a modification to their
NPDES program.
The Attorney General's Statement includes citations to specific
statutes, administrative rules, and judicial decisions which
demonstrate adequate authority to carry out the State's sewage sludge
management program. State statutes and regulations cited in the
Attorney General's Statement are also included in the application.
The Program Description includes a description of the scope and
organizational structure of the sewage sludge management program,
including a description of the general duties and the total number of
state staff carrying out the program, a description of applicable State
procedures, including permitting procedures, and administrative and
judicial review procedures, and a description of the State's compliance
tracking and enforcement program. It also includes an inventory of the
facilities that are subject to regulations promulgated pursuant to 40
CFR part 503 and subject to the State's sewage sludge management
program.
The proposed amendments to the Ohio EPA/EPA MOA include provisions
for permit administration, enforcement and compliance monitoring, and
annual reporting. The MOA has been signed by
[[Page 74524]]
the Director of Ohio EPA and will become effective upon the signature
of the Regional Administrator of EPA, Region 5. The MOA does not limit
the authority of EPA to take actions pursuant to its powers under the
CWA, nor does it limit EPA's oversight responsibilities with respect to
sewage sludge management program administration.
II. Sewage Sludge and the State Sewage Sludge Management Program
Sewage sludge, are the solids separated from liquids during
treatment at a municipal wastewater treatment plant and treated to
stabilize and reduce pathogens. EPA in 1993 adopted standards for
management of sewage sludge generated during the process of treating
municipal wastewater. 40 CFR part 503. The part 503 rules establish
standards under which sewage sludge 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 Ohio sewage sludge management program imposes requirements on
wastewater treatment plants, sewage sludge 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 obtain site authorization from Ohio EPA before class
B treated sewage sludge is applied to the site.
III. Indian Country
Ohio is not authorized to carry out its sewage sludge management
program in ``Indian Country,'' as defined in 18 U.S.C. 1151. Indian
Country includes:
1. All lands within the exterior boundaries of Indian reservations
within or abutting the State of Ohio;
2. Any land held in trust by the U.S. for an Indian tribe; and
3. Any other land, whether on or off an Indian reservation that
qualifies as Indian Country.
Therefore, this action has no effect on Indian Country. EPA retains
the authority to implement and administer the sewage sludge management
program in Indian Country. However, at this time, there is no Indian
Country within the State of Ohio.
IV. 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 5 and postmarked within 45 days of
this document will be considered by EPA before it takes final action on
Ohio's request for program modification approval. All written comments
and questions regarding the sewage sludge management program should be
addressed to John Colletti at the above address. The public is also
encouraged to notify anyone who may be interested in this matter.
V. 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 Ohio'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 5. 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 John Colletti 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 Ohio to provide statewide coverage and will be mailed to
interested persons at least 30 days prior to the hearing.
VI. EPA's Decision
EPA has determined that Ohio has submitted a complete application.
EPA sent a letter to the Director of the Ohio EPA on November 9, 2004,
stating that the State's application to modify the Ohio NPDES program
to include a sewage sludge management program was complete. EPA has 90
days from the date of that letter to approve or disapprove Ohio's
sewage sludge management program unless a public hearing is held. After
the close of the public comment period, EPA will consider and respond
to all significant comments received before taking final action on
Ohio's request for sewage sludge management 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
Ohio sewage sludge 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 sewage sludge use and disposal
within Ohio. EPA will remain the authority for sewage sludge use and
disposal in Indian Country within Ohio should a Tribe become
recognized, for the incineration of sewage sludge, and for the land
application of domestic septage. 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 NPDES permits proposed by Ohio
and to take enforcement actions for violations, as allowed by the CWA.
If EPA disapproves Ohio's sewage sludge management program, EPA will
notify Ohio of the reasons for disapproval and of any revisions or
modifications to the State program that are necessary to obtain
approval.
VII. Other Federal Statutes
A. 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 5 is currently in
discussions with the Ohio SHPO regarding its determination that
approval of the state sewage sludge management program would have no
effect on historic properties within the State of Ohio.
B. 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 5 has initiated informal ESA section 7 consultation with
the U.S. Fish and Wildlife Service
[[Page 74525]]
regarding Ohio's request for approval of its sewage sludge management
program.
C. 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 Ohio sewage sludge management program, even if a rule, would
not have significant economic impact on a substantial number of small
entities.
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 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 or least 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. Ohio's request for approval of its sewage sludge management
program is voluntary and imposes no Federal mandate within the meaning
of the Act. Rather, by having its sewage sludge 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 sewage sludge 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 sewage sludge 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 sewage sludge management facilities that will become subject to
the requirements of an approved State sewage sludge management program.
However, small governments that own and/or operate sewage sludge
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 sewage sludge management
program and any revisions to that program, these same small governments
will be able to own and operate their sewage sludge 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.
Authority for parts 123 and 501: Clean Water Act, 33 U.S.C. 1251
et seq.
Dated: November 23, 2004.
Norman Niedergang,
Acting Regional Administrator, Region 5.
[FR Doc. 04-27365 Filed 12-13-04; 8:45 am]
BILLING CODE 6560-50-P