Water Pollution Control; Approval of Application by Utah to Administer the Sludge Management (Biosolids) Program

ENVIRONMENTAL PROTECTION AGENCY

[FRL-5619-2]

Water Pollution Control; Approval of Application by Utah to

Administer the Sludge Management (Biosolids) Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Approval of Application.

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

SUMMARY: The State of Utah submitted an application to EPA to

administer and enforce the sludge management program for regulating

sludge management activities in the State. The program was authorized

effective June 14, 1996.

FOR FURTHER INFORMATION CONTACT: Bob Brobst at (303) 312-6129, Water

Permits Team (8P2-W-P); USEPA, Region VIII; One Denver Place, 999 18th

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

SUPPLEMENTARY INFORMATION: The application of the Utah Department of

Environmental Quality (UDEQ) was received by EPA on October 10, 1995.

Modifications were made to the Addendum to the Memorandum of Agreement

for Sludge Management Program, based on discussions between EPA, UDEQ,

and the Office of the State Attorney General.

UDEQ's application was described in the April 17, 1996 Federal

Register at Vol. 61, No. 75, pages 16787 and 16788, and in notices

published in the Salt Lake Tribune and Deseret News and the St. George

Daily Spectrum on April 20, 1996.

Copies of UDEQ's application package were available for public

review at the EPA Region VIII Office and at the UDEQ office in Salt

Lake City, Utah.

EPA provided copies of the public notice to permitted facilities,

tribal councils and tribal environmental agencies, certain Federal

agencies, and environmental groups within Utah. The mailing list used

is part of the record of the program application and review process.

EPA and UDEQ discussed the program application with the Utah Office of

the U.S. Fish & Wildlife Service and received their concurrence

[[Page 53920]]

that the proposed program authorization was unlikely to jeopardize the

continued existence of any endangered or threatened species or result

in the destruction or adverse modification of habitat of such species.

By letter dated April 4, 1996, EPA provided a copy of Utah's

application to the Utah State Historic Preservation Officer and

received their concurrence by letter dated April 16, 1996. EPA accepted

written comments from the public. All comments or objections received

in writing by EPA Region VIII by May 20, 1996 were considered by EPA.

Two comments were received.

The first comment concerned jurisdiction on Indian Country. The

Blackfeet Nation, Blackfeet Environmental Office, stated that:

``Utah DEQ should only be able to permit on lands outside the

exterior boundary of the Indian reservations in Utah. The

Environmental Protection Agency has the sole responsibility of

permitting on the reservation if the tribes do not or are not

capable of permitting themselves. I feel that to ensure

environmental justice to Indian Tribes, permitting should only be

done by Tribes or EPA, not States.''

As outlined in EPA's April 17, 1996 Federal Register and April 20,

1996 newspaper notices, EPA withheld from sludge management 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. The notices also acknowledged that the exact

geographical extent of Indian Country within the Uintah and Ouray

Indian Reservation was currently under litigation in Federal court, and

until that litigation was complete, that the EPA would enter into

discussions with the Ute Indian tribe of the Uintah and Ouray

Reservation and with the State of Utah to determine the best interim

approach to managing the program in the disputed area. In withholding

authorization for these areas, EPA was not making a determination as to

whether or not Utah had adequate jurisdiction. As noted earlier, EPA

provided copies of Utah's public notices to tribal councils and tribal

environmental agencies located within or abutting the State of Utah.

It should be noted that there are no EPA-issued sludge management

permits for facilities or activities in Indian Country at this time.

Operators or owners of facilities or activities subject to the sludge

management program which are located on or within the Uintah and Ouray

Reservation should send permit applications to EPA. 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.

The second comment, from the Milwaukee Metropolitan Sewerage

District, supported approval of Utah's request for delegation of the

biosolids program. The District also requested that EPA issue national

guidance explicitly providing for reciprocity for other-state issued

permits for ``exceptional quality'' bulk or bagged sludge. This request

was outside the purview of this authorization action and was forwarded

to the EPA Office of Water.

Conclusion

The State of Utah has demonstrated that it adequately meets the

requirements for program modification to include sludge management as

defined in the Clean Water Act, 40 CFR Part 123, and 40 CFR Part 503.

The U.S. Fish & Wildlife Service concurred with the EPA ``no adverse

effect'' determination regarding program authorization. The State

Historic Preservation Office concurred with the EPA ``no affect''

determination.

At this time, EPA is withholding authorization to administer the

sludge management program on Indian Country located within Utah,

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 Utah's authority to

administer the sludge management program.

State NPDES Program Status

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

Approved state Approved to Approved State

State NPDES permit regulate Federal pretreatment Approved general Approved sludge

program facilities program permits program management 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

Florida \1\......................................... 05/01/95 05/01/95 05/01/95 05/01/95

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 ..................

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

[[Page 53921]]

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........................................ 09/17/84 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 06/14/96

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.......................................... 41 36 29 39 1

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

Number of Fully Authorized Programs (Federal Facilities, Pretreatment, General Permits, Sludge Management)=1.

\1\ The Florida authorizations of 05/01/95 represents a phased NPDES program authorization to be completed by the year 2000.

Certification Under the Regulatory Flexibility Act

EPA has determined that this authorization will not have a

significant economic impact on a substantial number of small entities.

EPA recognizes that small entities may own and/or operate facilities or

businesses that will become subject to the requirements of an approved

state sludge management program. However, since such small entities

which own and/or operate sludge management facilities or businesses are

already subject to the requirements in 40 CFR parts 423 and 503, this

authorization does not impose any additional burdens on these small

entities. This is because EPA's authorization would result in an

administrative change (i.e., whether EPA or the State administers the

sludge management program in that State), rather than result in a

change in the substantive requirements imposed on small entities. Once

EPA authorizes a State to administer its own sludge management program,

these same small entities will be able to own and operate their

facilities or businesses under the approved state program, in lieu of

the Federal program. Moreover, this authorization, in approving a State

program to operate in lieu of the Federal program, eliminates

duplicative requirements for owners and operators of sludge management

facilities and businesses in that particular State.

Therefore, EPA provides the following certification under the

Regulatory Flexibility Act, as amended by the Small Business Regulatory

Enforcement Fairness Act. Pursuant to the provision at 5 U.S.C. 605(b),

I hereby certify that this authorization will not have a significant

economic impact on a substantial number of small entities. This

authorization effectively approves the Utah program to operate in lieu

of the Federal program, thereby eliminating duplicative requirements

for sludge management facility or business operators or owners in the

State. It does not impose any new burdens on small entities. This

document, therefore, does not require a regulatory flexibility

analysis.

Executive Order 12866

The Office of Management and Budget has exempted this document from

Executive Order 12866.

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 UNRA 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 document contains 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 that are not applicable

here. Utah's request for approval of its sludge management program is

voluntary and imposes no Federal mandate within the meaning of the Act.

Rather, by having

[[Page 53922]]

its 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

sludge management program, regulation is left to EPA.

In any event, EPA has determined that this document does not

contain a Federal mandate that may result in expenditures $100 million

or more for State, local, and tribal governments in the aggregate, or

the private sector in any one year. EPA does not anticipate that the

approval of Utah's sludge management program referenced in today's

notice will result in annual costs of $100 million or more. EPA's

approval of state programs generally may reduce, not increase,

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 sludge

management facilities or businesses generally no longer face dual

Federal and State compliance requirements, thereby reducing overall

compliance costs. Thus, today's document is not subject to the

requirements of sections 202 and 205 of the UMRA.

EPA has determined that this document contains no regulatory

requirements that might significantly or uniquely affect small

governments. The Agency recognizes that small governments may own and/

or operate sludge management facilities that will become subject to the

requirements of an approved State sludge management program. However,

such small governments which own and/or operate sludge management

facilities or businesses 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 sludge management program and

any revisions to that program, these same small governments will be

able to own and operate their sludge management facilities or

businesses under the approved State program, in lieu of the Federal

program.

Dated: August 28, 1996.

Jack W. McGraw,

Acting Regional Administrator, Environmental Protection Agency, Region

VIII.

[FR Doc. 96-26328 Filed 10-15-96; 8:45 am]

BILLING CODE 6560-50-P