Water Pollution Control; Approval of Application by South Dakota To Administer the National Pollutant Discharge Elimination System Program

ENVIRONMENTAL PROTECTION AGENCY

[FRL-4823-8]

Water Pollution Control; Approval of Application by South Dakota

To Administer the National Pollutant Discharge Elimination System

Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Approval of application.

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SUMMARY: On December 30, 1993, the Acting Regional Administrator for

the Environmental Protection Agency (EPA), Region VIII, approved the

application by the State of South Dakota to administer and enforce the

national pollutant discharge elimination system (NPDES) program for

regulating discharges of pollutants into waters within the State.

EFFECTIVE DATE: December 30, 1993.

FOR FURTHER INFORMATION CONTACT: Janet LaCombe at (303) 293-1593, NPDES

Branch, (8WM-C); U.S.E.P.A., Region VIII; Denver Place, 999 18th

Street, suite 500; Denver, CO 80202-2466.

SUPPLEMENTARY INFORMATION: The application of the South Dakota

Department of Environment and Natural Resources (DENR) was received by

EPA on April 28, 1993. Several modifications were made to the

application package, based on discussions between the EPA, the DENR,

and the Office of the Attorney General. The final changes, including

the signing of the Memorandum of Agreement by the Governor, were

completed on August 30, 1993.

South Dakota's application was described in Federal Register

notices dated September 1 and 9, 1993, at 58 FR 46145 and 47417, and in

notices published in the Rapid City Journal and the Sioux Falls Argus-

Leader on August 27 and September 10, 1993. In the September 1, 1993

Federal Register notice and the August 27, 1993 newspaper notices, EPA

highlighted three issues upon which it specifically requested public

comment. These issues concerned unsigned complaints from the general

public, penalty authority, and citizen intervention in enforcement

actions.

Copies of South Dakota's application package were available for

public review at the EPA Region VIII office and at the DENR office in

Pierre, South Dakota. Copies also could be purchased from the DENR at a

cost of $10.00.

EPA provided copies of South Dakota's public notices to permitted

facilities, tribal councils and tribal environmental agencies, and

environmental groups in South Dakota. The mailing list used is part of

the record of the program application and review process. By letter

dated August 25, 1993, EPA provided copies of South Dakota's

application to the U.S. Fish & Wildlife Service, and to the South

Dakota State Historic Preservation Officer.

As part of the public comment process, EPA conducted two public

hearings on South Dakota's application. The hearings occurred on

October 14, 1993 at the Matthew Training Center, Joe Foss Building, 523

East Capitol, Pierre, South Dakota, beginning at 3 and 7 p.m. The first

hearing lasted approximately one hour, and the second lasted about 45

minutes. The register of those attending is contained in the

administrative record. In addition, until October 22, 1993, EPA

accepted written comments from the public. All comments or objections

presented at either public hearing or received in writing by EPA Region

VIII by October 22, 1993, were considered by EPA.

Comments were received regarding the following issues: (1) Unsigned

complaints, (2) penalty authority, (3) citizen intervention, (4)

jurisdiction over Indian Country, (5) pretreatment program, (6)

mechanisms for ensuring protection of endangered and threatened

species, and (7) overall benefits or lack of benefits resulting from

authorization. EPA response to all comments are contained in this

notice. Summaries of the comments and EPA's responses follow. The

comments and hearing record are contained in the administrative record

supporting this notice.

I. Unsigned Complaints

Federal regulations at 40 CFR 123.26(b)(3) and (4) require a State

approved to administer the NPDES program to maintain a program for

investigating information regarding violations of applicable program

and permit requirements, to maintain procedures for receiving and

ensuring proper consideration of information submitted by the public

about violations of applicable program and permit requirements, to

encourage public efforts in reporting violations, and to make available

information on reporting procedures.

As outlined in EPA's September 1, 1993 Federal Register notice and

August 27, 1993 newspaper notices, Section 34A-2-111 of the South

Dakota Codified Laws (SDCL) prohibits the DENR from performing

inspections or conducting other investigatory activities pursuant to

SDCL Sections 34A-2-40, 34A-2-44, and 34A-2-45 based on, or as a result

of, information received from the general public unless the person

providing the information signs a complaint, which is to remain

confidential with the DENR. The statement by the South Dakota Attorney

General notes that information in complaints from the general public

made to another agency or DENR program and then referred to the DENR

NPDES program is not considered ``as a result of'' a complaint from the

general public.

The State has described the means by which it will consider and

respond to NPDES-related information from the general public and from

other state governmental agencies. The DENR will investigate and

respond to all citizen complaints where a signed complaint form has

been received and will investigate all complaints received from other

government agencies. At the time an unsigned complaint is received,

DENR will determine whether appropriate department authorities exist

under any state environmental statute to handle the unsigned complaint.

If not, the citizen shall be referred to the South Dakota Department of

Emergency and Disaster Services, the South Dakota Department of Game,

Fish & Parks, or another appropriate State agency. The appropriate

State agencies shall receive anonymous complaints and either

investigate under their authorities or sign and refer the complaint to

DENR. The process used for investigating and responding to unsigned

complaints will be published in major newspapers in South Dakota and

will be prominently posted in the main office and the field offices of

the DENR.

In its oversight role, EPA has established a ``hotline'' (1-800-

227-8917) to receive complaints, both identified and anonymous,

regarding NPDES-related activities in South Dakota. To communicate this

fact to the general public, EPA will publish the hotline number in the

Rapid City ``Journal'' and the Sioux Falls ``Argus-Leader'', as well as

sending a notice to public interest groups and permitted facilities.

The hotline number may be used by callers who have information

concerning a possible violation of an NPDES permit or program

requirement. The caller will be referred to a staff member of the EPA

Region VIII NPDES Branch. This staff person will record the information

received and make a decision whether or not an investigation is needed.

EPA may conduct the investigation or request that the DENR investigate.

A. Comments in Support of Sec. 34A-2-111

Those supporting South Dakota's system for addressing unsigned

complaints included the DENR, municipal, agricultural, and mining

associations, municipalities, another State agency, and industrial

dischargers.

1. Several commenters questioned the motives of people who submit

unsigned complaints and/or the merits of such complaints. They referred

to the right to face one's accusers. Their comments included:

A few persons stated that unsigned complaints result from feuds,

cranks, or competitors.

Two expressed the opinion that if a complaint is genuine, the

person making it should have the commitment to sign it. A

representative of an agricultural group that identified itself as the

prime sponsor of Sec. 34A-2-111 stated that ``there should be a great

deal of responsibility laid at the feet of those people making the

complaint * * *. [South Dakota is] a stand-up place * * * South Dakota

newspapers, by and large, don't accept letters to the editors that are

unsigned. South Dakota State agencies, by and large, do not accept

letters of complaint or phone calls that are anonymous. South Dakota

Attorney General's office does not accept complaints that are

anonymous, with some exceptions.'' Two commenters stated that a person

is entitled to face his accusers and is protected from anonymous

harassment. One of them cited the Sixth Amendment of the U.S.

Constitution.

2. Some commenters indicated that the state government and the

regulated community should be protected from unsigned complaints:

One city official noted that unsigned complaints can have a

detrimental effect upon an organization otherwise trying to work

cooperatively to achieve compliance.

``* * * an anonymous phone call or letter is too easy a method to

trigger an environmental audit * * *.''

``[Section] 34A-2-111 is a necessary statute that helps to limit

the expenditure of staff time on frivolous personal grudge type

complaints.''

3. Some commenters praised DENR's record in conducting

investigations and allowing for public participation. They also noted

the existence of the EPA ``800'' number. Their remarks included:

The Secretary, DENR, asserted in his written statement: ``To our

knowledge, since the passage of this law [SDCL Section 34A-2-111], this

law has never hindered our ability to address water pollution incidents

nor has it hindered public involvement.''

``* * * the current SDCL Section 34A-2-111 is working very well.

DENR is very responsible in investigating complaints and has a system

in place to guarantee that investigations take place once a complaint

arises and to keep the identity of the party making the complaint

confidential.''

A few commenters referred to the fact that EPA is maintaining an

``800'' number for persons not wishing to communicate with the state.

4. Several commenters indicated that the state's system provides

sufficient opportunity for public participation and agency

investigation of complaints. They supported this point by identifying

three ways in which Section 34A-2-111 was restricted in its

applicability:

a. The prohibition applies to complaints from the general public,

not to complaints made or passed on by another federal, state or local

level of government. If DENR determines that it lacks authority to

investigate a complaint, the complaint is then referred to another

agency.

b. The prohibition does not apply to the state's mining laws, solid

waste laws, and hazardous waste laws. Most complaints from factory

workers will relate to hazardous waste violations, which are not

covered by this prohibition.

c. The prohibition does not apply to DENR's right of entry, to the

issuance of an emergency order, to determinations of responsibility for

discharges, to waste disposal into state waters, and to more general

authorities to investigate violations of Chapter 34A-2.

B. Comments Opposing Sec. 34A-2-111

Those opposing South Dakota's system for handling unsigned

complaints included environmental groups and individuals working in

municipal facilities.

1. Some commenters stated that people hesitate to sign complaints

because they fear reprisals:

An anonymous individual who described himself or herself as a

``person employed in the wastewater and pretreatment field in the State

of South Dakota'' stated, ``Many times people are reluctant to sign

complaints because of some type of repercussion.''

``It is a reality that many individuals are reluctant to report

suspected or obvious discharge violations for fear of reprisal. Real or

perceived, it is a reality.''

An environmental group (which stated that it had recently concluded

a successful citizen's suit against a mining company in South Dakota)

commented that it had filed written complaints with the DENR based on

anonymous tips that it, rather than the DENR, had received. Citizens

had been reluctant to file a complaint even if it was considered

``confidential.'' This group also stated that it had never found any

citizen complaint to be frivolous or harassing.

2. Several commenters criticized the process for investigating and

responding to unsigned complaints, described in Item E.4. on page 7 of

the MOA. Their comments included:

``The MOA should contain unequivocal language setting forth a

specific procedure for SDDENR to follow for maintaining (1) an

investigation of violations and (2) procedures for ensuring proper

consideration of information from the public about violations.''

``We do find fault, at times, with the depth and timeliness of the

`investigation' conducted by DENR upon our filed complaints.

Investigations conducted several days to weeks after a complaint is

filed may miss a violation.''

``In South Dakota, with its small population and overlapping

networks of personal and business relationships, unsigned complaints--

if they are seriously considered by SDDENR are likely to be the most

fruitful sources of violation reporting.''

``It is not clear * * * whether department authorities exist within

SDDENR to appropriately handle unsigned citizen complaints if referred

by another State agency. . . . We do not consider it appropriate to

burden other State agencies whose administrative and field staff are

already clearly overworked.''

``Any unsigned complaint will simply fall into the cracks between

agencies and nothing will be done.''

``The Departments of Agriculture and Game, Fish and Parks do not

have authority or expertise for dealing with complaints that are

properly the concern of SDDENR.''

3. Some commenters indicated that SDCL prevented South Dakota's

application from meeting pertinent authorization requirements:

``We believe neither SDCL 34A-2-111 nor EPA's proposed solution

meets the requirements of Section 402(b)(2)(B) and Section 402(b)(7) of

the Clean Water Act, and 40 CFR Sections 123.26(b)(3) and (4) * * *.

EPA should withhold NPDES delegation until SDCL 34A-2-111 is

repealed.''

``The requirements of forty (sic) CFR Sections 123.26(b)(3) and (4)

will not be met under the MOA because of the convoluted nature of

provisions for receiving and dealing with unsigned complaints.''

4. Some commenters stated that the state's procedure for handling

unsigned complaints created the impression that the state favored

special interests over the general public:

``If there's a problem, [most citizens] want action, no matter whom

they call. For a citizen to be told they have to call another agency to

get a water problem addressed just confirms [the] citizen's view of

government as controlled by special interests who get laws like 34A-2-

111 approved * * *. State government should not be empowered by EPA to

cripple or make more difficult and confusing citizens' ability to work

directly with the proper state regulators because of paranoia on the

part of the special interests who are regulated under water quality

laws.'' Two individuals commented in a letter that they were ``appalled

of (sic) the manner in which the State intends on handling or rather

not handling citizen complaints and the legalese double talk the State

Attorney General's office is trying to portray as meaningful

procedures.''

C. EPA's Response to Comments on Sec. 34A-2-111

The State has a program and procedures for public reporting of

violations that ensures their proper consideration, even though the

existence of Sec. 34A-2-111 appears to require a more cumbersome

process than is desirable. EPA might propose a simpler program or

procedures for a hypothetical ``model'' state program. However, under

the Clean Water Act, a State is provided flexibility in achieving the

minimum requirements of the Act, including those for public

participation. If approached by another state on suggestions for public

reporting, EPA would recommend against inclusion of a Section 111-type

provision. EPA encourages South Dakota to repeal Section 111 as

inefficient and having the potential to limit the discretion of the

very state agency entrusted to exercise enforcement discretion.

EPA doubts that facilities subject to DENR investigations could use

Section 111 as a means to avoid the consequences for failing to comply

with Sec. 34A-2-40, -44, and -45. DENR investigators are not required

by any provision of state law to identify the basis for the information

leading to investigation. Moreover, DENR has authority to initiate

prosecution based on verified information. Notwithstanding questions

about enforceability, DENR has indicated its intention to faithfully

implement applicable provisions of state law, as well as to implement

public participation procedures to meet the requirements of 40 CFR

123.27(d). EPA encourages DENR to periodically evaluate the

effectiveness of its public reporting procedures in providing public

participation in the NPDES enforcement program in South Dakota,

particularly in light of the existence of Section 111.

The fact that the prohibition in 34A-2-111 does not apply to

complaints from governmental entities or to other State environmental

programs provides the State some options for the general public to use

in reporting concerns about possible violation or problems related to

wastewater treatment or effluent. The description of the State process

will be published in major newspapers in South Dakota and posted in the

DENR offices located throughout the State. Therefore, mechanisms exist

to ensure proper consideration of information from the general public

and are sufficient to meet the minimum requirements of public

participation consistent with 40 CFR 123.26.

EPA acknowledges there may be some delay in investigation of

information received from the general public because of the requirement

for a signed complaint. South Dakota has explained, however, that the

requirement should not unduly delay prompt investigation when the

member of the general public indicates a willingness to identify

himself or herself and sign a complaint.

The volume of unsigned complaints which are received by any one

entity is not expected to be so great that it would strain the

resources available to that organization. However, the DENR is

responsible for assuring whatever resources needed to respond to

unsigned complaints are available, as well as providing adequate

resources to administer the NPDES program as a whole.

EPA notes that the adequacy and effectiveness of DENR's public

reporting requirements are easily verified, both by EPA and the general

public. If the described procedures do not, in practice, provide for

adequate and effective public reporting, DENR's compliance with public

reporting requirements may be reexamined. Should subsequent

administrative or judicial interpretations of Section 111 broaden its

scope from that described in the program submission or otherwise impair

implementation of the public reporting procedures, EPA may reevaluate

whether the existence of Section 111 yet enables DENR to adequately

administer the NPDES program.

Motives of Anonymous Tipsters, Rights of the Accused, and Complainant

Fear of Reprisal

EPA does not dispute that some complaints may be submitted with

questionable motives or that signed complaints may often be more

credible than unsigned ones. ``Crank'' calls may be from disgruntled

neighbors or business competitors. However, a statute is not needed to

eliminate the problems associated with frivolous calls. The DENR has

professionally trained staff capable of screening out such calls, based

on the information provided or not provided. Such calls are also

possible from persons who do sign their names.

The fact that the prohibition applies only to the general public

and not to other governmental entities allows the NPDES program to use

information referred to it by these entities. This information may be

provided as problems the entities have identified in the course of

their duties (including accepting referrals). It may also come from

problems identified by complainants to other entities about their

programs which contain information also applicable to the NPDES

program.

Regarding the rights of the accused, the Sixth Amendment right to

face accusers applies in criminal cases when the testimony of an

informant is to be used in trial. However, if an informant's tip is

independently confirmed by a law enforcement agency and the testimony

of the informant is not needed at trial, then any rights under this

amendment have not been affected.

Fear of reprisal may occur even in situations where a person does

not have to provide a name, since in small communities it might be

fairly easy to figure out or at least narrow down the persons likely to

have reported the information. In addition, employees may fear reprisal

from their employers should they report possible violations of NPDES

statutes, regulations, or permit conditions. However, such fears may be

diminished by the fact that SDCL 34A-2-111 requires the identity of the

complainant to be kept confidential.

Protection of Agencies and Regulated Community/Favoring Special

Interests

A frivolous claim may place a strain on an organization trying to

cooperate. However, the potential for strain is offset by the potential

to promote the general good which complaints may provide the State in

identifying and correcting problems early on. Also, it would seem that

there would be few instances of complaints being merely frivolous or

harassing.

There is always the chance that actions by governmental entities

may be misconstrued by the general public. This is not a basis for

determining a program does not meet the requirements for delegation.

However, this is an issue both the SDDENR and the EPA will be sensitive

to as they administer and oversee the NPDES program.

The State of South Dakota is a sparsely populated state with

relatively few industries. Moreover, the existence of overlapping

business and personal networks provides an opportunity for someone

removed from a situation to provide information instead of someone

concerned about retaliation from an employer. South Dakota's small

population and overlapping networks may be productive sources of

information. These networks can work to the advantage of the NPDES

program in that possible NPDES violations, particularly those affecting

surface waters may be reported in connection with information supplied

to other environmental programs. For example, according to the DENR,

the DENR Ground Water program has the lead on spills and contacts the

NPDES staff when there is a potential for surface waters to be

affected. The Mining program will generally receive any tips regarding

mining problem spills/discharges (e.g. cyanide) and share them with the

NPDES staff. Game Fish & Parks recently referred a case of a discharge

without a permit to the DENR. That agency also uses its own authority

when the discharge is in the area of a fishery. All of these programs

are not affected by the prohibition in SDCL 34A-2-111 and, in the past,

have received and forwarded complaints which also related to NPDES-

related activities.

The concern expressed that information may fall between the cracks

is a valid one. It is possible this could occur in any process for

receiving information sources outside the administering office.

However, the system established for investigating and responding to

complaints provides that the DENR will investigate and respond to all

citizen complaints where a signed complaint form has been received and

will investigate all complaints received from other government

agencies.

Conclusion

EPA determines that the procedure South Dakota has established is

adequate to comply with the Clean Water Act and with NPDES federal

regulations. South Dakota has established a process to deal with issues

raised by the general public by accepting signed complaints and being

required to keep the identity of the source confidential and by

referring other complaints to another State agency. The Governor, as a

signatory to the MOA, has committed to follow the process for receiving

and responding to information from sources outside the State NPDES

program.

Though section 111 may not provide an adequate program for public

reporting in other states or for other programs, under the particular

circumstances of the DENR NPDES program, the state procedures are

adequate for the following reasons: (1) South Dakota is not heavily

industrialized, (2) the prohibition pertains only to water programs and

not other media programs, (3) the state is sparsely populated for the

most part, (4) the right of entry (Sec. 34A-2-46) is not impaired, (5)

the prohibition provision does not appear to be directly enforceable by

dischargers, and (6) the State NPDES program retains the authority to

respond in emergencies (see 34A-2-68), to enforce against persons

causing pollution of waters (see 34A-2-21), and to conduct

investigations to determine the responsible person for causing a

discharge which may cause or has caused pollution of state waters (see

34A-2-71.1) regardless of the source of information leading to these

actions.

The situation in South Dakota is such that there are overlapping

networks of state agencies and there are active environmental groups

which will identify issues on behalf of their membership and of

individuals who communicate information and concerns to their groups.

EPA notes that anonymous tips are just one source of complaints,

albeit a significant source. The statute does not place restrictions on

any other sources of information or other activities than those defined

in 34A-2-40, -44, and -45.

EPA oversight includes an hotline number (1-800-227-8917) to

receive complaints from all sources. Oversight also includes monitoring

the DENR process and results from public participation in compliance

and enforcement. If there appears to be a problem, EPA will revisit

this aspect of the program with DENR.

II. Penalty Authority

Section 402(b)(2)(B) of the CWA requires an authorized state

program to have authority to inspect, monitor, enter, and require

reports to at least the same extent as required by section 308 of the

CWA. Section 402(b)(7) of the CWA requires an authorized state program

to have adequate authority to abate violations of permits or the permit

program through penalties and other means of enforcement. EPA State

NPDES program requirements at 40 CFR 123.27(a)(3)(i) provide that an

approved state program is to have the authority to recover civil

penalties for the violation of ``any NPDES filing requirement'' and

``any duty to allow or carry out inspection, entry or monitoring

activities,'' as well as for the violation of any NPDES permit

condition or any regulation or order issued by the state program

director.

As outlined in EPA's September 1, 1993, Federal Register notice and

August 27, 1993 newspaper notices, South Dakota does not have direct

statutory authority to collect civil penalties, or criminally enforce,

a failure to comply with SDCL 34A-2-44 (record-keeping), 34A-2-45 and -

46 (inspection authorities), due to a lack of citation to SDCL 34A-2-75

(penalty provision) in these sections. However, because the Department

[of Environment and Natural Resources] can prosecute (both civilly and

criminally) violations of permit conditions and because it can set

permit conditions for recording, reporting, monitoring, entry, and

inspection under 34A-2-40, it can enforce these statutes for permitted

facilities.

The Department can, with regard to unpermitted facilities, obtain

both the records and entry for inspections pursuant to search warrants

issued on the basis of the criminal provisions of SDCL 34A-2-75 and the

violation of SDCL 34A-2-36 (operating without the required permit).

Civil penalties for failure to comply with SDCL 34A-2-44, -45, and -46

by an unpermitted facility are available only through violation of an

order issued by the Department pursuant to SDCL 34A-2-53.

A. Comments Favoring Existing Penalty Authority

The DENR and various members of the regulated community expressed

opinions that the lack of a direct authority to impose penalties for

violations of the cited statutes would have little affect on the

ability of the State to exact penalties for failure to comply with the

statutes.

One commenter from the regulated community thought that no

detrimental effects would be expected and, therefore, the system for

collecting penalties was adequate until such time as the matter was

corrected by the legislative process. The Secretary of the DENR noted

that the Attorney General's Statement indicated that reporting

requirements will be included in the permit, and are therefore

enforceable for permitted facilities. As to unpermitted facilities, the

Secretary of the DENR (who would be the party issuing orders) stated

that the DENR could issue an enforcement order in a timely manner to

require any necessary reporting or sampling and that the DENR could

enforce these orders. The Secretary also cited a recent water pollution

enforcement case settlement which included a penalty of $489,000 and

was accomplished without the authority to enforce any NPDES condition

or requirement. He stated that delegation would only increase the

abilities of the DENR to enforce violations of the state's

environmental laws. Another state agency noted that ``It appears * * *

that the case where this EPA concern would be applicable is for

facilities that are discharging without a permit and not keeping

records. For these facilities, failure to have a permit would be a more

severe violation than the failure to keep records.''

One commenter thought that penalties for items normally found in a

permit should not begin to accrue for an unpermitted facility until

after the state issues an order.

B. Comments Criticizing Existing Penalty Authority

Those who criticized the existing authority were the pretreatment

coordinator for a municipal treatment facility and one environmental

group. They questioned the ability of the authority to stand up to

judicial review and the round-about means the DENR would have to use to

exercise the authority in collecting penalties.

One commenter expressed the opinion that the state's authority to

collect penalties from unpermitted facilities is not clear,

particularly in light of the Freeman v. South Dakota lawsuit. In that

case, the court found that Mr. Freeman's civil rights were violated

when, upon refusing State health inspectors entry, he was served with a

closure order. The commenter stated that the finding was made because

the citation under licensure statutes failed to cite an enforcement

provision.

An environmental group indicated that the State's roundabout legal

reasoning to support its authority to obtain records and entry to

inspect at unpermitted facilities may be overlooked by a judge faced

with what appears to be a clear failure to provide for criminal and

civil sanctions for record-keeping or inspection violations. Specific

penalty provision language must be added to 34A-2-44, -45, and -46 in

order to comply with 40 CFR 123.27(a)(3)(i).

Another environmental organization stated that the state should

have direct statutory authority to collect civil penalties and to

criminally enforce a failure to comply with Sec. 34A-2-44. They also

noted that the MOA should require South Dakota to adopt less round-

about methods to obtain records and entry and to be able to do so

without the DENR having to issue an order. They believed that formal

issuance of orders and search warrants can take too much time.

C. EPA's Response to Comments on Penalty Authority

EPA's authorization regulations require civil penalties to be

recoverable for the violation of any NPDES permit condition; any NPDES

filing requirement; any duty to allow or carry out inspection, entry or

monitoring activities; or any regulation or orders issued by the State

Director. See 40 CFR 123.27(a)(3)(i). The State has demonstrated an

adequate authority and methodology for collecting penalties from

permitted and unpermitted facilities. However, EPA would recommend a

legislative amendments to 34A-2-44, -45, and -46 to define failure to

comply with each as a violation enforceable through 34A-2-53. These

amendments would allow a more direct, and thereby more effective,

implementation of the enforcement program.

Adequacy of the Ability To Recover Penalties

The State has shown that legal mechanisms exist for exacting

penalties tied to permitted and unpermitted facilities which fail to

comply with SDCL 34A-2-44, -45, and -46. The authorities used are not

specifically based on a violation of these statutes. However, they do

provide for 'civil penalties to be recoverable' for refusal to allow or

carry out inspection, entry or monitoring activities, which is what 40

CFR 123.27(a)(3)(i) requires.

The situation in Freeman v. South Dakota does not apply to the

State's authority to collect penalties for refusals to allow the state

to inspect potential water pollution violations. In that case, State

inspectors had summarily terminated a campground's license because the

campground's operator would not allow the state to inspect without a

warrant. In Freeman, civil rights were violated because the State

inspectors lacked statutory enforcement authority. In the Case of South

Dakota NPDES, SDDENR does have adequate statutory authority to issue

administrative orders. The South Dakota Attorney General has stated

South Dakota has adequate statutory authority to implement the program

described.

Calculation of Penalties

Ignorance of the law is not an argument for deferring penalties.

The regulated community is notified through public notice of the

requirements for permits, right of entry, etc. It is their

responsibility to be aware of these requirements and be accountable for

them from the time the requirements become effective.

EPA agrees that the penalty for failure to have a permit might be

more severe than for a failure to keep records by itself. However, both

requirements are normally available to the regulator in taking

enforcement actions. The existence of a penalty for a discharge without

a permit does not, by itself, offset the need for a mechanism to

collect penalties for failure to allow or carry out inspection, entry

or monitoring requirements. As noted earlier, such a mechanism exists.

Regarding the date at which a violation begins, the State has

asserted that administrative orders or search warrants could be issued

within one or two days. Therefore, the number of days of violation used

to calculate penalties for unpermitted facilities would be almost the

same as for permitted facilities. In cases where a discharge causes

pollution of any waters of the state, the penalty can be calculated for

each day the discharge occurred as a violation of 34A-2-21, subject to

a Sec. 34A-2-75 order. The number of days of violation is just one

factor applied in calculating penalties. The small difference in the

number of days of violation between permitted and unpermitted

facilities could be offset by the presence of other factors in

calculating and negotiating the final penalty (e.g. the existence of

another violation -discharge without a permit). Therefore, the

immediate revision of SDCL 34A-2-44, -45, and -46 is not required.

However, EPA does consider such revisions desirable, so that the State

would have more direct remedies for these violations.

It should also be noted that EPA, in its oversight role, can take

enforcement action. Typically, EPA would send to the State a Notice of

Violation and give the State 30 days to take action. If the State were

not to take sufficient action, including not collecting a large enough

penalty, EPA could file an order and collect penalties from the date

the violations started. Citizen suits are also a means to assure

appropriate penalties are collected.

Conclusion

EPA finds that the penalty authority and process for collecting

penalties is adequate and serves as a protection against noncompliance

with water pollution control law, rules, and permits. EPA's oversight

role offers a second level of protection. A third level of protection

is offered by related statutes, such as prohibiting discharges which

may cause or cause pollution of waters of the state (see 34A-2-21),

prohibiting discharge of waste or pollutants without a permit (see 34A-

2-36), and prohibiting reduction of existing water quality (see 34A-2-

22). Therefore, the DENR NPDES program adequately meets the

requirements for recovering penalties.

III. Citizen Intervention

EPA's September 1, 1993 Federal Register and August 27, 1993

newspaper notices requested public comment on South Dakota's statutory

procedure for citizen intervention in administrative enforcement

actions, as required by 40 CFR 123.27(d). South Dakota has certified

that it allows intervention as of right in administrative enforcement

actions pursuant to SDCL Sec. 34A-10-2. It has indicated that Sec. 34A-

10-2, considered alone, appears to grant merely ``permissive

intervention''; that is, intervention if no other party objects).

However, South Dakota has also certified that if a citizen is denied

intervenor status in an administrative case, he may file a lawsuit in

circuit court to have the court order him to be named as a party in the

administrative proceeding, pursuant to Sec. 34A-10-5. Because of the

possibility for such a circuit court proceeding, South Dakota's

Attorney General construes SDCL 34A-10-2 to allow mandatory

intervention in administrative procedures. The Memorandum of Agreement,

a document signed both by the State of South Dakota and the EPA, states

that the SDDENR will allow intervention as of right in civil

proceedings to at least the same extent required by 40 CFR 123.27(d)(1)

and shall not oppose intervention in administrative proceedings as

provided by Sec. 34A-10-2.

A. Comments Favoring Existing Intervention Procedure

Members of the regulated community commented that the statutory

procedure afforded citizens an adequate right of intervention. One

specific comment, made by a member of the regulated community, was that

the State assurance in the MOA makes the citizen right to intervention

mandatory. This commenter also noted that the Attorney General

Statement interprets SDCL 34A-10-2 to mean that the citizen's right to

intervene is mandatory.

B. Comments Opposing Existing Intervention Procedure

Environmental groups and individual citizens criticized the

existing intervention procedure and its application by the DENR.

1. Some commenters stated that intervention rights were not being

honored.

One environmental group stated that it was ``* * * especially

concerned about the problems posed * * * by the progressive subtle and

not so subtle deterioration of participation by citizens and non-profit

citizens organizations in quasi-judicial hearings.'' It referred to

individual citizens being ignored at public hearings, public documents

being unavailable for review and comment before a contested case

hearing, and decisions being given little publicity. One individual

commented that at a public hearing in the Fall of 1992 he ``* * *

watched (and objected) as BME Board members subverted the rules of that

hearing by allowing a mining industry lawyer take control of the

hearing. Board members allowed the attorney to cross examine citizens

as if they were under oath when the citizens were simply there to

testify on their own behalf. The incidents are a matter of record. They

are also quite typical of DENR.''

Another environmental group cited instances where it or individual

citizens were excluded from permit modification, remediation, and

negotiation processes.

Another individual citizen's letter provided comments which ``* * *

center[ed] on the State of South Dakota's continued and specific

efforts to stifle and judicially dissuade individuals from pursuing

environmental issues. They concluded that ``[O]bviously, the state of

South Dakota has little understanding of citizen participation and

rights to involvement.''

``Politically powerful applicants regularly 'short-circuit' the

contested case procedure with active help from the Attorney General and

the DENR. In several controversial cases * * * DENR and/or the

applicant have used various procedures to obtain 'quickie hearings'

designed to thwart due process and a fair hearing. One state board, at

the urging of the Attorney General, * * * carved out a novel

justification, citing SDCL 1-22-27, that allows applicants the right to

short-circuit the contested case process.''

``A circuit court remedy for denial of intervenors status is NO

remedy because of expense and unwieldiness.''

2. Commenters expressed the concern that public interest and

environmental groups must be represented by an attorney at contested

cases hearings.

An environmental group stated that DENR has denied them

intervention in administrative hearings if they are not represented by

an attorney. They noted that the State's application does not clearly

state whether an attorney is required.

``Public interest groups must be represented by an attorney at

contested case hearings. Since hardly any of us can afford such, the

public interest has rarely been represented in the past few years.''

``The Board [of Minerals and the Environment] [h]as so decreed, and

the state Attorney General's office has rendered an opinion of

agreement that only attorney's (sic) can present cases before the Board

if the group appearing before the Board is an association, corporation,

or other similar entity. The Board has effectively prevented

environmental groups from appearing before the Board without the

considerable expense of an attorney. It is our understanding that other

State Boards do not have the attorney requirement.''

C. EPA's Response to Comments Concerning Intervention Procedure

EPA has determined that DENR intervention authority and procedures

adequately meets the requirement of 40 CFR 123.27(d). Citizen

intervention rights will be honored. There is currently no requirement

for public interest groups to be represented by attorneys at NPDES

contested case proceedings.

Honoring Intervention Rights

The great majority of the comments expressing concerns with the

application of intervention rights pertained to non-NPDES State program

topics (e.g. mining, sewage ash, landfills) and a State board (Board of

Minerals and Environment) which will not administer the NPDES program

in South Dakota.

South Dakota statutes, rules, and program documents provide citizen

access to information. SDCL 1-27-1 specifically allows for open

inspection of all records and documents during normal business hours.

The MOA (page 7, item E.1) provides public access to NPDES files during

normal working hours. Public notice of proposed general permits, major

permits, and pretreatment program applications is provided for in the

MOA (page 7, item E.3) and the Program Description (page 9). South

Dakota Rule 74:03:13:02 requires the DENR to public notice any

contested case hearing requested and the reasons for the hearing. The

public notice of any proposed settlement of a State enforcement action

is required only when the authority which allows intervention as of

right is not demonstrated (see 40 CFR 123.27(d)).

The Attorney General Statement construes the language of SDCL 34A-

10-2 concerning intervention to be mandatory. In addition, both the MOA

(page 3, item A.13) and the Program Description (page 19) allow for

citizen intervention as of right in civil proceedings equivalent to

that required by 40 CFR 123.26(d)(1).

Representation by an Attorney

The South Dakota Bar Association has issued an ethics opinion that

appearance before administrative agencies on behalf of corporations or

associations must be by licensed attorneys. The ruling concerning

representation at contested case hearings was in reference to contested

case hearings held by the Board of Minerals and Environment. The

requirement for representation by an attorney does not appear to apply

to the NPDES program. However, even in the case of the Board of

Minerals and Environment, the Board does not exclude individual

citizens from full participation at hearings, but applies the

requirement for legal representation of organizations.

The DENR clarified in an addendum to the MOA regarding the NPDES

program that individual members of the general public and nonprofit

organizations shall not be required to be represented by attorneys in

NPDES program contested case hearings to the extent allowed by the

State Bar Association and the State Supreme Court. EPA believes that a

state bar association does not have the authority to direct the

policies and procedures of a state agency which derives its authority

from the state legislature. EPA does recognize that a state bar

association can constrain the activities of individual attorneys

employed by a state agency. In its oversight role, EPA will monitor

future rulings of the South Dakota Bar Association and the State

Supreme Court regarding citizen intervention and whether environmental

organizations are being required to be represented by attorneys. If

either of these occur, EPA will consider the impact these rulings and

requirements have on the viability of the State's NPDES enforcement

program.

Conclusion

EPA has determined that DENR intervention authority and procedures

adequately meets the requirement of 40 CFR 123.27(d).

IV. Jurisdiction Over Indian Country

As outlined in EPA's September 1, 1993 Federal Register and August

27, 1993 newspaper notices, EPA withheld from NPDES program

authorization consideration those lands which were in Indian Country or

for which there was significant controversy over whether or not the

land was Indian Country. As noted earlier, EPA provided copies of South

Dakota's public notices to tribal councils and tribal environmental

agencies. Tribal governments and affected permittees were also provided

with copies of the list of permitted facilities which EPA would

continue to administer.

In withholding authorization for these areas, EPA was not making a

determination as to whether or not South Dakota had adequate

jurisdiction. This issue was considered deferred. Nevertheless, a

number of comments were received regarding jurisdiction. No comments

were received from tribal councils or tribal environmental

organizations.

A. Comments Regarding EPA's Continued Administration of the NPDES

Program in Indian Country

One commenter, a member of the regulated community, stated that

EPA's retaining authority within the identified Indian Reservations

should lighten the load for SDDENR.

A number of commenters however, disagreed with EPA's administering

the program in Indian Country or land in controversy. Some of the

comments were the following:

``* * * EPA is asserting a jurisdictional authority which it cannot

for regulatory and resource reasons, carry out; the result is

inconsistent environmental protection, and some geographical areas left

without environmental protection * * * If EPA insists that it carve out

geographical areas of the state which should not have equal

environmental protection, then I want to make it very clear that the

State of South Dakota will further pursue the issue of jurisdiction on

non-Indian lands within reservation boundaries.''

``To the extent that EPA retains authority over facilities located

on lands other than retained Indian allotments, we believe EPA violates

the holding * * * [that] exclusive tribal and federal jurisdiction is

limited to the retained allotments * * * We believe the better policy,

at least as it applies to former reservation areas, is to grant the

State authority unless the Tribe can show authority for the dischargers

being within the exclusive jurisdiction of the Tribe or federal

government.''

``We feel South Dakota has demonstrated its intent and ability to

administer programs fairly in the entire state. Therefore, the SDDENR

should administer the NPDES program throughout the State. The

department will need to work closely with tribal governments. Splitting

the non-Federal responsibilities could result in ineffective protection

of the waters of the state.''

A state agency expressed concern that the split in administering

the program would cause confusion.

B. EPA's Response to Comments Regarding Jurisdiction Over Indian

Country

As noted in the public notice, EPA made the decision to withhold

authorization to administer the NPDES program on ``Indian Country,'' as

defined in 18 U.S.C. 1151, which includes lands inside reservation

boundaries and trust lands found outside reservations. For the most

part, these include nine Federal Indian reservations:

1. Cheyenne River Indian Reservation

2. Crow Creek Indian Reservation

3. Flandreau Indian Reservation

4. Lower Brule Indian Reservation

5. Pine Ridge Indian Reservation

6. Rosebud Indian Reservation (includes Todd County and portions of

Millette and Gregory Counties)

7. Sisseton Indian Reservation

8. Standing Rock Indian Reservation

9. Yankton Indian Reservation.

This issue was deferred until a satisfactory demonstration of

jurisdiction over Indian Country is made by the State of South Dakota

or another governmental entity. Otherwise, delegation of any part of

the program would have to be held up pending a lengthy resolution of

this complicated issue.

While a number of comments were received regarding jurisdiction,

this issue is deferred until such time as an appropriate analysis is

made of the State's authority to assert jurisdiction over lands for

which EPA is retaining jurisdiction. EPA will specifically mail copies

of public notices of future assertions to those who provided comments,

so they may make their comments during the appropriate public comment

period.

It should be noted that EPA has prepared a list of NPDES-permitted

facilities which will continue to be administered by EPA. Operators or

owners of facilities subject to the NPDES program which are located on

these lands should continue to send original or renewal permit

applications to EPA. They will be notified of this at the time all

permittees are notified of the program authorization decision. Persons

with questions as to whether their facilities may be in Indian Country

are advised to consult with the Bureau of Indian Affairs and the EPA.

V. Pretreatment Program

A state pretreatment program must meet the requirements of 40 CFR

403.10(f) before being approved for program administration by the EPA.

Under 40 CFR 403.10(f)(1)(i) and 403.3(j), an approved state program

must have the authority to require industrial users to comply with

pretreatment standards for specific industrial subcategories, as

established by EPA regulations in 40 CFR, Chapter I, Subchapter N,

``Effluent Guidelines and Standards.'' When South Dakota submitted its

proposed program to EPA, subchapter N had not been incorporated into

the State program. However, incorporation was approved at the July 28,

1993, public hearing of South Dakota Water Management Board and became

effective on September 5, 1993.

A. Comments Regarding the Pretreatment Program

One commenter, a pretreatment program manager, expressed concerns

and raised questions regarding the clarity of the pretreatment program

procedures and the level of resources needed by the DENR to administer

the pretreatment program:

``1. I feel DENR must elaborate and develop a procedure for

entering into a joint powers agreement with a municipality in order for

DENR to run a municipal pretreatment program. There is nothing in the

submission that indicates the extent to which DENR will administer the

program, especially if a large municipality requests the Department run

their program.

2. Does DENR have the authority to flatly refuse to administer a

municipal pretreatment program?

3. If DENR issues a SWD Permit to a POTW and mandates the

development of a pretreatment program, can the POTW in turn request the

State to administer the program? If so, what are the procedures for

requesting that DENR administer the program?

4. Assuming the State becomes delegated, what is the timeframe for

previously approved pretreatment programs to submit notice to the DENR

that the POTW wishes to continue administering the program?

5. I honestly feel that if ONE of the larger POTW's [sic] request

that DENR administer their pretreatment program, along with all of the

other smaller POTW pretreatment responsibilities the state will assume,

the Department will not have enough personnel to adequately administer

this program.''

A second commenter proposed that the following be added to the

administrative rules:

``74:03:26--A POTW that intends to discharge wastewater to a

separate POTW which is under a different authority must submit a

request for approval to the Secretary at least 90 days prior to

discharge. The Secretary must evaluate the impact of industrial user

wastes on contributing POTW and receiving POTW.

The Secretary may choose one of the following options to protect

both POTWs from significant industrial user discharges:

(1) Require contributing jurisdiction to establish a Pretreatment

Program in accordance to [sic] the requirements in 40 CFR Part 403.8(a)

and the State provide direct oversight over program.

(2) State implement a POTW Pretreatment Program in lieu of the

contributing jurisdiction as set forth in 40 CFR Part 403.8(e).

(3) Control all significant industrial users in the contributing

jurisdiction directly by conditions established in 74:03:26:03 to

74:03:26:14 and the State of SD Pretreatment Program.''

B. EPA's Response to Comments

ARSD Section 74:03:26:02 and Section V of the Program Description

provide for development of a joint powers agreement in cases where a

POTW required to develop a pretreatment program has requested the DENR

to assume pretreatment program requirements. This request is to be made

within 30 days of notification that the State has been delegated the

pretreatment program or within 30 days of the facility being notified

that it is required to develop a pretreatment program. In the latter

case, this notification would be made either at the time of issuance of

an NPDES permit with such a requirement or the conclusion of an

enforcement action imposing such a requirement.

EPA believes that any POTW can request that the State assume

responsibility for a local pretreatment program, subject to

implementation of an agreed-upon joint powers agreement. It appears

that the DENR may refuse to administer a program only if no joint

powers agreement is developed within forty-five days after notification

of intent by the POTW.

EPA agrees that the DENR should provide more detailed instructions

to POTWs regarding the joint powers agreement process. This can be done

at the time the POTW requests the DENR to administer its pretreatment

program, since the procedures may vary somewhat depending on the extent

and content of local legal authorities and procedures at each facility

when the request is received.

The DENR will be required upon authorization to supply whatever

resources are necessary to ensure that all pretreatment program

activities are fully implemented and enforced. DENR staff are

knowledgeable about the resources required to implement a program. SDCL

34A-2-120 provides for the DENR to collect annual fees from, not only

the POTW for which it administers the pretreatment program ($35,000),

but each pretreatment industrial user ($600 plus up to $1,600 per

process line for analytical testing). These fees, plus any legislative

appropriations, would be the financial basis for DENR administering the

overall state pretreatment program and individual programs with which

it has joint powers agreements.

Regarding the proposed rule changes, EPA finds additional rules are

not needed to provide the State the authority to require a POTW to

develop a pretreatment program or to request that the DENR administer

the program in lieu of the POTW. The State is not required to offer

POTWs the option to develop or have programs developed at POTWs which

do not meet the criteria contained in 40 CFR 403.8(a), as seems to be

suggested by the second commenter's proposed rules.

Conclusion

The pretreatment program described adequately meets the

requirements of 40 CFR 403.10(f). The Program Description outlines the

process for joint powers agreements. EPA recognizes that the specific

steps for developing joint powers agreements between the DENR and an

individual POTW may vary according to the situation at each

municipality. EPA will continue to play a significant review and

oversight role in the development and implementation of joint powers

agreements.

VI. Endangered Species Act

In our August 25, 1993 letter to the United States Fish and

Wildlife Service (FWS), EPA initiated informal consultation under

section 7 of the Endangered Species Act (ESA) on EPA's proposal to

authorize the DENR to administer the NPDES Program under section 402 of

the Clean Water Act in South Dakota. The FWS responded to EPA on

October 20, 1993. EPA responded to that letter with a letter on

November 19, 1993 describing permitting and variance procedures and

providing a biological assessment of the impact of program

authorization on endangered and threatened species in South Dakota

delineated in the FWS October 20th letter. The November 19th letter

also stated that EPA believed that the delegation would have no effect

on the listed species. Responding in its November 30, 1993 letter to

the EPA, the FWS indicated that it could concur with our no adverse

effect finding if EPA agreed to four conditions.

EPA and DENR staff met with staff at the FWS South Dakota Field

Office in Pierre to discuss the conditions. Based on that meeting, the

EPA and DENR agreed to these conditions, as follows. FWS concurred on

EPA's Finding of No Adverse Affect on December 15, 1993. The MOA

between EPA and South Dakota on the administration of the South Dakota

NPDES program addressed these conditions.

1. In each individual public notice or variance, the State shall

make an initial determination of effect on all federally listed

endangered and threatened species that may occur in the project area of

influence.

This information will be provided to the Service as well

as to the EPA with sufficient time to review and, if necessary, provide

comments, as reflected in the Memorandum of Agreement signed between

EPA and the State of South Dakota.

The State will communicate with the Service, on a periodic

basis, on the permits that it will be issuing. The Service will work

with the State to identify those permits for which there are species in

the project area.

2. If it is determined by the State that the individual permit or

variance to the permit provided to the Service may adversely affect any

federally listed and/or proposed endangered and threatened species, the

State will work with the Service to eliminate the adverse affect.

3. If the Service does not concur with the State's ``no affect''

determination, the State will work with the Service to eliminate the

adverse effect.

4. If any adverse effects cannot be eliminated, the permit

application or variance will be held in abeyance and the EPA, with

their oversight responsibilities, will require consultation with the

Service, after EPA has completed the formal objection process and the

permit has reverted to EPA for issuance.

A. Comments Concerning Information Needed and the Consultation Process

One environmental organization urged EPA to engage in formal

consultation with the FWS pursuant to Section 7 of the Endangered

Species Act. Another environmental group questioned whether EPA had

complied with requirements to consult with the FWS and with the State

Game, Fish, and Parks Department.

B. EPA's Response to Comments

The EPA successfully completed informal consultation with the U.S.

Fish & Wildlife Service, as described above. Therefore, there was no

need to engage in the formal consultation process.

VII. Overall Delegation Issues

EPA received a number of public comments regarding the overall

capability and intent of the DENR to administer an authorized NPDES

program.

A. Comments Regarding the Benefits of Delegation

1. Many commenters praised the capabilities, competency, knowledge,

and past performance of the DENR staff.

``* * * we have relied on the South Dakota Department of

Environment and Natural resources as a resource for questions and

concerns we have had with the NPDES program. We have found the DENR to

be staffed by a group of well-informed professionals dedicated to the

enhancement of water quality. Their guidance and advice have always

been valuable * * *.''

``The DENR has established itself as a very competent department

and has a very positive working relationship with a variety of

industries within the state. The DENR will be very effective in

administering and enforcing the NPDES program for the State of South

Dakota * * * we haven't always agreed with DENR on our positions, but

let me say clearly we have always been treated very fairly.'' ``To me,

the State seems very capable of making decisions and taking action,

while at the Federal level, response does not occur with promptness.''

``We are aware of the efforts the Department made prior to and

during the 1992 State Legislative session to secure funding needed to

upgrade staff capability to take over management of the NPDES

program.''

``* * * environmental regulations are best administered at the

state level. State administration provides both the permittee and the

regulator better opportunity for face to face communication and for

better understanding of the specifics of an operation through regular

inspections. Administration and enforcement are both enhanced by having

the regulators in close proximity to the regulated facilities.''

2. Numerous commenters emphasized the advantages of regulation by

an agency actually in the State. Comments included the following:

``EPA technical staff are normally available by phone only, while

state staff are frequent visitors to the area and are available for

valuable on-site assistance * * *. Our experience in working with [a

delegated state regarding other facilities] has been one where positive

environmental benefits have been achieved in an efficient, timely

manner. We deal directly and in person with all the regulatory people

involved, which drastically reduces the questions of interpretation,

improves timeliness of permit compliance and in the end provides

quicker, effective solutions to environmental problems.''

``I believe that delegation of the NPDES program for regulating the

discharges of pollutants into waters within the State will mean a more

effective operation on both a programmatic and cost basis.''

``We are as concerned for the environment of our employees as much

as anyone else is, but we have a desire for cooperation rather than

dictation.''

``I believe a program administered by the state of South Dakota,

with regional offices in efforts to help industry clean up our

environment, should we be polluting it, would be a tremendous benefit

to all manufacturers.''

``Having the answers in state and accountable to South Dakotans

will enhance businesses' ability to comply.''

``[The State Feedlot Program Regulation Review] * * *. Committee

concluded that State management of the NPDES program was needed to

accomplish effective regulation of feedlot wastes in South Dakota.''

``The National Performance Review recently cited recommendations to

create a system of program delivery that works better and costs less.

The very first recommendation (EPA01) specifically states: `Improve

Environmental Protection Through Increased Flexibility for Local

Government'. The United States Environmental Protection Agency has a

real opportunity today to act on this recommendation by approving South

Dakota's application!''

``There are several reasons why the Legislature supported this

[Second Century Environmental Protection] Act:

--State administration of the federal program would enhance economic

development;

--Improved coordination would exist between local and state

governmental agencies; and

--The state would better safeguard the public health, safety, welfare

and the environment of this state through a customer service

approach.''

B. Comments Opposing Authorization

A number of commenters identified problems associated with

delegation, both in public participation issues and in other areas:

``If [program authorization] were to happen, South Dakota citizens,

although they might not know it, would be without protection.''

``DENR's activities last year demonstrate clearly the agency's

tendency toward advocacy for, rather than regulation of, the entities

it is, by law, required to oversee * * *. [This group] seeks denial of

state delegation until the philosophy of DENR changes from that of

advocate for the regulated community to one of regulator.'' An

environmental group criticized the state's commitment to enforcement.

An environmental group requested that EPA require monitoring data to be

submitted and housed at DENR. They also suggested that issued and

denied permits require equivalent levels of clearances.

C. EPA's Response to Comments on Overall Authorization Issues

EPA noted and considered all public comments considering the

overall advantages and disadvantages of approving the NPDES program

administration by the State of South Dakota.

Many of the comments reflected the advantage of State program

approval which the Clean Water Act envisioned: the program can be

administered more effectively closer to the regulated community when

the agency and its staff are competent and committed to protecting the

environment and public health.

Resources to be used meet the minimum requirements of the NPDES

program as it now exists. The State would be responsible for devoting

the resources needed to maintain this program and implement additional

requirements, as they occur.

EPA's responses to public participation issues are found under the

sections on ``Unsigned Complaints'' and ``Citizen Intervention''.

EPA typically does not require submission of monitoring data other

than discharge monitoring reports (DMRs) when it administers the NPDES

program in a state. Therefore, it does not require an approved state to

do so.

It appears that there are equivalent levels of clearance for permit

issuance and denial. In both cases, the Secretary makes that decision.

This is noted in the flow chart on page 9 of the Program Description.

Conclusion

The State of South Dakota has demonstrated that it adequately meets

the requirements for program authorization as defined in the Clean

Water Act, 40 CFR part 123, and 40 CFR part 403. The U.S. Fish &

Wildlife Service concurred with the EPA ``no adverse affect''

determination regarding program authorization. The State Historic

Preservation Office concurred with the EPA ``no effect'' determination.

This authorization does not include the sludge management program.

At this time, EPA is withholding authorization to administer the

NPDES program on Indian Country located within South Dakota, including

lands for which there is significant controversy over whether or not

the land is Indian Country.

Federal Register Notice of Approval of State NPDES Programs or

Modifications

EPA must provide Federal Register notice of any action by the

Agency approving or modifying a State NPDES program. The following

table will provide the public with an up-to-date list of the status of

NPDES permitting authority throughout the country. Today's Federal

Register notice is to announce the approval of South Dakota's authority

to administer the NPDES permit program, including regulation of federal

facilities and issuance of general permits and to administer the

pretreatment program.

State NPDES Program Status

----------------------------------------------------------------------------------------------------------------

Approved Approved to Approved Approved

State NPDES regulate State general

permit federal pretreatment permits

program facilities program program

----------------------------------------------------------------------------------------------------------------

Alabama.................................................... 10/19/79 10/19/79 10/19/79 06/26/91

Arkansas................................................... 11/01/86 11/01/86 11/01/86 11/01/86

California................................................. 05/14/73 05/05/78 09/22/89 09/22/89

Colorado................................................... 03/27/75 ........... ............ 03/04/83

Connecticut................................................ 09/26/73 01/09/89 06/03/81 03/10/92

Delaware................................................... 04/01/74 ........... ............ 10/23/92

Georgia.................................................... 06/28/74 12/08/80 03/12/81 01/28/91

Hawaii..................................................... 11/28/74 06/01/79 08/12/83 09/30/91

Illinois................................................... 10/23/77 09/20/79 ............ 01/04/84

Indiana.................................................... 01/01/75 12/09/78 ............ 04/02/91

Iowa....................................................... 08/10/78 08/10/78 06/03/81 08/12/92

Kansas..................................................... 06/28/74 08/28/85 ............ 11/24/93

Kentucky................................................... 09/30/83 09/30/83 09/30/83 09/30/83

Maryland................................................... 09/05/74 11/10/87 09/30/85 09/30/91

Michigan................................................... 10/17/73 12/09/78 04/16/85 11/29/93

Minnesota.................................................. 06/30/74 12/09/78 07/16/79 12/15/87

Mississippi................................................ 05/01/74 01/28/83 05/13/82 09/27/91

Missouri................................................... 10/30/74 06/26/79 06/03/81 12/12/85

Montana.................................................... 06/10/74 06/23/81 ............ 04/29/83

Nebraska................................................... 06/12/74 11/02/79 09/07/84 07/20/89

Nevada..................................................... 09/19/75 08/31/78 ............ 07/27/92

New Jersey................................................. 04/13/82 04/13/82 04/13/82 04/13/82

New York................................................... 10/28/75 06/13/80 ............ 10/15/92

North Carolina............................................. 10/19/75 09/28/84 06/14/82 09/06/91

North Dakota............................................... 06/13/75 01/22/90 ............ 01/22/90

Ohio....................................................... 03/11/74 01/28/83 07/27/83 08/17/92

Oregon..................................................... 09/26/73 03/02/79 03/12/81 02/23/82

Pennsylvania............................................... 06/30/78 06/30/78 ............ 08/02/91

Rhode Island............................................... 99/17/84 09/17/84 09/17/84 09/17/84

South Carolina............................................. 06/10/75 09/26/80 04/09/82 09/03/92

South Dakota............................................... 12/30/93 12/30/93 12/30/93 12/30/93

Tennessee.................................................. 12/28/77 09/30/86 08/10/83 04/18/91

Utah....................................................... 07/07/87 07/07/87 07/07/87 07/07/87

Vermont.................................................... 03/11/74 ........... 03/16/82 08/26/93

Virgin Islands............................................. 06/30/76 ........... ............ ...........

Virginia................................................... 03/31/75 02/09/82 04/14/89 05/20/91

Washington................................................. 11/14/73 ........... 09/30/86 09/26/89

West Virginia.............................................. 05/10/82 05/10/82 05/10/82 05/10/82

Wisconsin.................................................. 02/04/74 11/26/79 12/24/80 12/19/86

Wyoming.................................................... 01/30/75 05/18/81 ............ 09/24/91

Totals............................................... 40 35 28 39

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Number of Fully Authorized Programs (Federal Facilities, Pretreatment,

General Permits)=26

Review Under Regulatory Flexibility Act and Executive Order 12866

Under the Regulatory Flexibility Act, EPA is required to prepare a

Regulatory Flexibility Analysis for all rules that may have a

significant impact on a substantial number of entities. The proposed

approval of the South Dakota NPDES program does not alter the

regulatory control over any industrial category. No new substantive

requirements are established by this action. Therefore, because this

notice does not have a significant impact on a substantial number of

small entities, a Regulatory Flexibility Analysis is not needed.

On October 12, 1993, the Office of Management and Budget exempted

this Agency action from the requirements of Executive Order 12866.

Dated: December 30, 1993.

Jack W. McGraw,

Acting Regional Administrator, Environmental Protection Agency, Region

VIII.

[FR Doc. 94-493 Filed 1-10-94; 8:45 am]

BILLING CODE 6560-50-P