State Program Requirements; Approval of Application by Oklahoma to Administer the National Pollutant Discharge Elimination System (NPDES) Program

ENVIRONMENTAL PROTECTION AGENCY

[FRL-5655-4]

State Program Requirements; Approval of Application by Oklahoma

to Administer the National Pollutant Discharge Elimination System

(NPDES) Program

AGENCY: Environmental Protection Agency.

ACTION: Final approval of the Oklahoma Pollutant Discharge Elimination

System under the Clean Water Act.

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SUMMARY: On November 19, 1996, the Regional Administrator for the

Environmental Protection Agency (EPA), Region 6, approved the

application by the State of Oklahoma to administer and enforce the

National Pollutant Discharge Elimination System (NPDES) program for

regulating discharges of pollutants into waters of the State. The

authority to approve state programs is provided to EPA in Section

402(b) of the Clean Water Act (CWA). The approved state program i.e.,

the Oklahoma Pollutant Discharge Elimination System (OPDES) program is

a partial program to the extent described in this Notice (see section

titled ``Scope of the OPDES program), which will operate in lieu of the

EPA administered NPDES program pursuant to Section 402 of the CWA. The

OPDES program will be administered by the Oklahoma Department of

Environmental Quality (ODEQ). In making its decision, EPA has

considered all comments and issues raised during the publicly noticed

comment period. Summaries of the comments and EPA responses are

contained in this notice. The comments and public hearing record are

contained in the administrative record supporting this notice.

EFFECTIVE DATE: November 19, 1996. Because CWA section 301(a) prohibits

new discharges until they are authorized by an NPDES permit, this

action is immediately effective to avoid further suspension of

permitting actions in Oklahoma and the unnecessary burden such a

suspension would impose on new dischargers.

FOR FURTHER INFORMATION CONTACT: Ms. Ellen Caldwell at U.S. EPA, Region

6, Water Quality Protection Division, 1445 Ross Avenue, Dallas, Texas

75202, or by calling (214) 665-7513, or electronically at

[email protected]

or Norma Aldridge, Department of Environmental Quality, Water Quality

Division, 1000 N.E. 10th Street, Oklahoma City, Oklahoma 73117-1212, or

by calling (405) 271-5205.

SUPPLEMENTARY INFORMATION: Oklahoma's application for OPDES program

approval was submitted on June 10, 1996, and final supplements were

received on August 20, 1996. The documents were described in the

Federal Register Notice of August 29, 1996, (61 FR 45420) in which EPA

requested comments and gave notice of public hearing. Further notice

was also provided by way of publication published on August 28, 1996,

in The Lawton Constitution, the Daily Oklahoman, the Tulsa World, the

McAlester News Capital & Democrat, the Guymon Daily Herald, and the

Woodward News. Copies of the application were made available at the

addresses below and could also be purchased from the State for the cost

of $358.65 (the cost of the principal documents, i.e the Attorney

General's Statement, Memorandum of Agreement, Program Description, and

the Enforcement Management System all without their associated

appendices is $163.35). An electronic copy of the documents stored on

computer disk was provided at no cost to interested parties which

supply disks to ODEQ for that purpose. (Citizens may still request a

disc copy and should supply 3 new, 3.5'' high density/double sided

microdisk. The documents will be in WordPerfect 6.0.) EPA provided

copies of the public notice to permitted facilities, Indian tribes, and

other federal and state agencies.

As a part of the public participation process, both a public

meeting and hearing were held in MidWest City, Oklahoma, on September

30, 1996. The public meeting provided as an informal question and

answer session, and began

[[Page 65048]]

at 2 pm ending at 4:30 pm. The hearing started at 7 pm and lasted until

7:30 pm. Oral comments were recorded during the hearing and are

contained in the administrative record supporting this action. Written

comments were accepted by EPA through October 21, 1996. All comments

presented during the public comment process, either at the hearing or

in writing, were considered by EPA in its decision. EPA's responses to

the issues raised during the comment period are contained in the

Responsiveness Summary provided in this notice. A copy of EPA's

decision and its Responsiveness Summary has been sent to all commenters

and interested parties (those persons requesting to be on the mailing

list for EPA actions in Oklahoma).

Copies of the final program documents for the OPDES program are

available to the public during normal business hours, Monday through

Friday, excluding holidays, at:

EPA Region 6, 12th Floor Library, 1446 Ross Avenue, Dallas, Texas

75202, (214) 665-7513;

ODEQ Headquarters, Department of Environmental Quality, Water Quality

Division, 1000 N.E. 10th Street, Oklahoma City, Oklahoma 73117-1212.

The Regional Administrator notified the State of the program

approval decision by letter dated November 19, 1996, and notice of

EPA's final decision has been published in the newspapers in which the

public notice of the proposed program appeared (listed above). As of

November 19, 1996, EPA suspended issuance of NPDES permits in Oklahoma

(except for those permits which EPA retained jurisdiction as specified

below in the section titled ``Scope of the OPDES Program''). The

State's OPDES program will implement federal law and operate in lieu of

the EPA-administered NPDES program. EPA does, however, retain the right

to object to OPDES permits proposed by ODEQ, and if the objections are

not resolved, to issue the permit itself.

On May 8, 1996, EPA issued a final rule amending minimum State

program requirements. The amendment explicitly requires that all states

that seek to administer an NPDES program must provide an opportunity

for judicial review in state court of final permit decisions that is

sufficient to provide for, encourage, and assist public participation

in the permitting process. The Attorney General Statement submitted by

Oklahoma addresses the issue of judicial standing, asserting that

Oklahoma complies with the review criteria expressed in 61 FR 20972

(May 8, 1996). Based on a review of Oklahoma legal authority, the

explanation provided in the State's AG Statement and discussions with

ODEQ attorneys, it appears that Oklahoma law meets the amended State

NPDES program requirement.

Changes to the OPDES Proposed Documents

No changes were made to the proposed OPDES program documents based

on information obtained in the public comments received, however, EPA

has requested two changes to the Memorandum of Agreement (MOA)

clarifying how the OPDES program will be consistent with federal

requirements and policy. These changes are minor and do not require

additional public notice. No commenter noted these portions of the MOA

or issues in any submitted comments.

1. Section C of the Oklahoma/EPA MOA (Jurisdiction over Permits)

has been revised to clarify that EPA is retaining authority for the

administration of EPA issued general permits, and not NPDES program

authority over those classes of discharges which are covered by those

general permits (See below ``Scope of the OPDES Program'' A.6.). This

would include the general permit for discharges from UST remediation

water discharges and the following storm water general permits:

Baseline construction storm water general permit (57 FR 41209), NPDES

permit numbers OKR10*###; Baseline non-construction storm water general

permit (57 FR 41297), NPDES permit numbers OKR00*###; and Multi-sector

storm water general permit (60 FR 51108), NPDES permit numbers

OKR05*###. (For an individual facility's permit number, the * is a

letter and the #'s are numbers--e.g. OKR00Z999). The revised language

is as follows:

EPA will temporarily retain authority to administer general permits

for:

--All existing discharges of storm water associated with industrial or

construction activity (40 CFR 122.26(b)(14)), including allowable non-

storm water, authorized to discharge under an NPDES storm water general

permit as of the date of program assumption.

--New discharges of storm water associated with industrial or

construction activity, including allowable non-storm water, eligible

for coverage under an NPDES storm water general permits, excluding new

discharges subject to a new source performance standard.

--All existing and new discharges resulting from implementing

corrective action plans, as required by 40 CFR 280, for cleanup of

groundwater contaminated by releases from Petroleum Underground Storage

Tank Systems (UST).

Case-by-case transfers for individual storm water and UST

dischargers will be made using the following procedures:

--ODEQ may request early transfer of an individual facility or a class

of storm water dischargers at any time. All requests will be in writing

and will include a brief rationale.

--If ODEQ and EPA agree to provide an individual permit in lieu of

general permit coverage, the State will include outfalls for the

affected discharges in a draft OPDES permit and the public notice of

the draft permit will concurrently notice the transfer of authority for

the facility's discharges to ODEQ.

--A permittee with a wastewater discharge or storm water discharge that

is not eligible for coverage under an EPA storm water general permit

must apply to DEQ for an individual permit.

Final transfer of general permitting authority for storm water and

UST discharges will be made using the following procedures:

--No later than three years from the date of program assumption, the

State will make the necessary changes to State statutes in order to

qualify for general permitting authority.

--Within 90 days of the effective date of the new statutes, the State

will submit a supplemental Attorney General's statement, along with a

copy of the relevant statutes, certifying that the Executive Director

has the authority to issue general permits.

--If EPA concurs with the Attorney General's statement, the Agency will

publish notice of the transfer of general permits for the remaining

storm water and UST discharges to ODEQ and send a copy to the

appropriate mailing list.

--Once the Executive Director of ODEQ assumes authority in accordance

with a promulgated final rule to issue general permits, the State will

become the permitting authority (subject to EPA oversight) for all

discharges of storm water associated with industrial and construction

activity, UST remediation discharges. EPA storm water general permits

and any effective general permits for UST remediation discharges will

then be transferred to ODEQ for administration. Within 30 days of the

transfer of authority, EPA will provide

[[Page 65049]]

ODEQ with a list of all facilities authorized to discharge under these

general permits.

2. Oklahoma proposed a regulation for consideration for self-

reporting of noncompliance (Title 252:2-117). At the time of this

authorization the regulation is not finalized. As agreed by EPA and

ODEQ, language has been added to page 39 of the MOA ensuring that the

final regulation will be consistent with NPDES program requirements.

The new language is as follows:

``The DEQ's proposed audit rule and any associated policy and/or

guidance which may be used to mitigate penalties for delegated

facilities under the OPDES program, must receive final EPA

concurrence prior to implementation by the State.''

Once the regulation is finalized, ODEQ will send a revised Program

Description and/or Enforcement Management System explaining the rule's

implementation with regard to the OPDES program. The State will also

send a supplemental Attorney General's Statement to ensure the

regulation will be consistent with NPDES requirements. To the extent

EPA finds that a final rule modifies or supplements the OPDES program

and constitutes a program revision, in accordance with 40 CFR 123.62

these revisions of the original OPDES program will be publicly noticed

in the Federal Register and major newspapers in the State to provide

for public comment on the revision.

Scope of the OPDES Program and Clarifications on EPA Authority and

Oversight

All NPDES files under the jurisdiction of ODEQ will be transferred

from EPA to the state within 30 days. NPDES permits under ODEQ's

jurisdiction will become state administered OPDES permits and will be

reissued (upon expiration) or modified by the ODEQ. All permits brought

to public notice by ODEQ after this authorization and under its OPDES

authority will be OPDES permits providing NPDES authorization to those

dischargers.

A. EPA Authority

Oklahoma's OPDES program is a partial program, which conforms to

the requirements of section 402(n)(3) of the Clean Water Act. The OPDES

program applies to all discharges covered by the authority of ODEQ.

This includes most discharges of pollutants subject to the federal

NPDES program (e.g. municipal wastewater discharges, pretreatment, and

most industrial point source discharges, and point source discharges

from federal facilities), including the disposal of sewage sludge (in

accordance with section 405 of the Act and 40 CFR part 503). ODEQ does

not have regulatory authority over facilities regulated by other

agencies in the State of Oklahoma, therefore EPA will remain the NPDES

regulatory authority for the following discharges:

1. Agricultural industries regulated by the Oklahoma Department of

Agriculture including concentrated animal feeding operations and

silviculture. EPA will remain the NPDES permitting authority for all

point source discharges associated with agricultural production,

services, silviculture, feed yards, livestock markets and animal

wastes.

2. Oil and Gas exploration and production related industries and

pipeline operations regulated by the Oklahoma Corporation Commission.

EPA will retain NPDES authority over these industries and their

discharges to surface waters of the state.

3. Discharges in Indian Country. The State of Oklahoma does not

seek jurisdiction over Indian Country. EPA will retain NPDES authority

to regulate discharges in Indian Country (as defined in 18 U.S.C.

1151). The state of Oklahoma has undertaken steps to revise regulation

252:605-1-3(c) clarifying ODEQ does not seek to issue authorized OPDES

permits to discharges in Indian Country. EPA and ODEQ will work

together with tribal authorities to resolve questions of permitting

authority for individual discharges.

4. Discharges of radioactive materials regulated by the federal

government (i.e. those radioactive materials covered by the Atomic

Energy Act of 1954, as amended (42 U.S.C. 2011 et. seq.)). EPA does not

have the authority to approve the OPDES program to regulate radioactive

wastes governed by the Atomic Energy Act. The regulatory authority for

radioactive materials will remain under the jurisdiction of the U.S.

Department of Energy and the Nuclear Regulatory Commission. (Some

industrial discharges which contain very low level radioactive wastes

(e.g. manufacturers of watches may discharge trace amounts of radium,

and hospital wastes sometimes contain iodine isotopes) which are not

regulated under the Atomic Energy Act and may be regulated by EPA; upon

authorization of the OPDES program, the authority to regulate those

discharges may become the responsibility of ODEQ.)

5. Oklahoma Ordinance Works Authority (OOWA). EPA will retain

enforcement authority for OOWA (NPDES permit No. OK0034568), located in

Pryor, Oklahoma, and all industries served by this facility. ODEQ is

legally responsible for implementing the pretreatment program at OOWA.

6. Authority over EPA issued general permits: EPA will retain

authority to administer general permits in accordance with 40 CFR

123.1. As explained in the Federal Register Notice proposing approval

of the OPDES program, Oklahoma is revising its statutes and regulations

to provide the Executive Director of the Oklahoma Department of

Environmental Quality with the full authority to issue general permits

under the OPDES program. This revision of Oklahoma Law is to ensure

that the Oklahoma general permitting program is consistent with the

requirements of 40 CFR 123.25(c). In the Federal Register Notice

concerning the proposal of the OPDES program, EPA asserted that ``Until

the state completes this transfer of authority, EPA will retain full

permitting and enforcement authority for those discharges which are

covered, or proposed to be covered by EPA issued general permits.'' EPA

provided that it would transfer this authority and the administration

of the general permits to the State once ODEQ has revised its program

to include general permitting authority. EPA now wishes to clarify that

the State has program authority over all classes of discharges (except

as listed above). EPA will not retain program authority over those

discharges except to the extent it will continue to administer EPA

issued general permits.

This clarification will translate into only minor changes for

permittees in the State of Oklahoma. Until the transfer of general

permit authority to ODEQ, EPA will continue to administer those general

permits it has issued or proposed in Oklahoma. Until otherwise notified

by EPA or the State, permittees covered by those general permits will

continue to report all compliance information to EPA Region 6. Also,

any facility eligible for coverage under these permits will send its

notice of intent to EPA rather than ODEQ. Until otherwise notified by

the State or EPA, all Notices of Intent and Termination (NOIs and NOTs)

for coverage under EPA's general permits for storm water (only) should

continue to be sent to the EPA NOI Processing Center (mail code 4203),

401 M Street, SW, Washington, DC 20460. The only variation from the

proposed program will be authority to reissue the general permits. ODEQ

is the permitting authority, and as such, will reissue the general

permits once that authority has been transferred to ODEQ. EPA may not

reissue the general permits once they have expired. If ODEQ has not

been able to revise its program to include general permitting authority

prior to the

[[Page 65050]]

expiration of a general permit, it could issue individual permits

instead. In the interim, any discharger covered by an EPA general

permit may request that its discharge be covered by an individual

permit issued by the State as described in the MOA language quoted

above (Changes to the OPDES Proposed Documents #1).

The Federal Register Notice of August 29, 1996, proposing approval

of the OPDES program (61 FR 45420-45426), at page 45422, paragraph 2

refers to ``Phased Program Authority.'' To eliminate any confusion that

EPA meant that Oklahoma's NPDES Program is a ``partial and phased''

program in the context of Section 402(n)(4) of the Clean Water Act, 33

USC 1342(n)(4), EPA is clarifying that the word ``phased'' was used in

a generic sense and not the statutory meaning of a ``phased program''

as that term is used in 402(n)(4). A phased program in accordance with

CWA section 402(n)(4) provides a state up to 5 years to assume

administration for categories of dischargers considered ``point

sources'' by the CWA. ODEQ has the legal authority to administer the

program to include those discharges covered by EPA's general permits

using individual permits, thus, EPA considers the OPDES program as

covering all discharges under the jurisdiction of the ODEQ in Oklahoma.

Therefore, Oklahoma's program is not a ``phased'' program as that term

is used in section 402(n)(4) of the Clean Water Act.

7. Status of applications, proposed permits, contested permit

actions, and unresolved EPA enforcement actions: Except for the files

listed below, all pending NPDES permit applications and issued NPDES

permits under jurisdiction of ODEQ will be transferred to Oklahoma

within 30 days of the approval of the OPDES program. In accordance with

the signed MOA, EPA will retain temporary authority for all proposed

permits until final issuance; permits contested under evidentiary

hearing proceedings until those are resolved; and compliance files and

authority for all open enforcement orders until such time as ODEQ has

issued parallel orders or EPA has resolved the enforcement action.

Proposed Permits: EPA shall retain permit decision-making authority

over permits which have been publicly noticed until they are issued and

effective. Once these permits are effective, they will be transferred

to ODEQ unless contested. The permit files will be transferred to the

state as the permits become effective.

Contested Permit Actions: EPA will retain permits for which

variances or evidentiary hearings have been requested until such time

as they are resolved. As each request is resolved, EPA will notify ODEQ

and transfer jurisdiction of the permit to ODEQ. EPA shall also

maintain enforcement lead over discharge permits with a pending

evidentiary hearing request; these will be transferred to the state

upon resolution of the issue for which the hearing was requested.

Enforcement Actions: EPA Region 6 will retain primary enforcement

authority after the date the OPDES program is approved for a number of

facilities which have unresolved compliance issues. These permittees

will continue to report to EPA on all compliance issues including

regular submittals of Discharge Monitoring Reports for their NPDES

permits. Authority for these permits can subsequently be transferred to

the State one of two ways: (1) The outstanding compliance issue can be

resolved and the permittee has returned to compliance, or, (2) the

State can issue a parallel administrative action to address the

outstanding compliance issue. As a practical consideration, enforcement

authority for municipal or county facilities that are operated by the

same governmental entity will not be transferred to the State as long

as one of its major facilities has an unresolved compliance issue.

NOTE: EPA in coordination with ODEQ will inform all permittees in

writing of their reporting responsibilities. Permittees should continue

to report as specified by both their State and Federal permits until

otherwise notified.

B. Status of Regulation Changes and Corrections

1. Indian Country. Amendments to regulation OAC 252:605-1 will be

presented to ODEQ's Environmental Quality Board (EQB) in March for

approval.

2. General Permitting Authority. This change of authority will be

proposed to the 1997 Legislative session as an amendment to 27A O.S.

Section 2-14-181 et seq.

3. Finalization of Audit Privilege Regulation. This proposed

regulation will be before the EQB on November 26, 1996, and will be

codified as OAC 252:2-11-7 once the rulemaking process is completed.

Responsiveness Summary

The following is a summary of the issues raised by persons

commenting on EPA's proposed approval and EPA's responses to those

issues.

1. Issue: EPA received many comments from industry, businesses,

associations, and municipalities supporting authorization of the OPDES

program. These commenters cite examples of good working relationships

with the ODEQ and confidence in the technical skill and ethics of the

staff and management of that agency. These commenters also point out

the benefits of having a system run at the state level that is more

readily accessible and cost effective than the system of having both a

state and federal permitting program.

Response: EPA is pleased with the apparent confidence the citizens

of Oklahoma have in their Department Of Environmental Quality. EPA

believes that approval of the OPDES program will provide both an

environmentally protective permitting program, as well as one which

will be responsive to the needs of citizens and businesses in Oklahoma.

2. Issue: Some municipalities expressed concern about the need to

raise fees to support the OPDES program. These commenters support EPA

approval of the program, while calling for more proportional fee system

or financial support for municipalities. Only one municipality

supported the authorization of the OPDES program conditioned upon no

additional cost to ``mandated participants'' of the program.

Response: States applying to administer the NPDES program must

establish that they have the financial ability and structure to run the

program which EPA would approve (40 CFR 123.21). In the sources of

funding identified by ODEQ for the OPDES program there is a fee system

for permittees. The structure and necessity for the fee system was

researched by ODEQ, reviewed by EPA, and reevaluated by an independent,

third party study. EPA is satisfied the fee system outlined in the

OPDES program is appropriate.

3. Issue: A national trade association sent comments objecting to

EPA's assertion that authorization of a state program under NPDES was a

``federal action'' requiring consultation under section 7 of the

Endangered Species Act (ESA). The association draws the conclusion from

the ESA that EPA is not authorized nor is under any obligation to

consult on any action that would not jeopardize a species. The

association asserted that EPA approval of a state program is no more of

a ``federal'' action than its review of state-issued permits; that

EPA's authorization is not a ``discretionary'' action and therefore is

not subject to the requirements of ESA. The commenters added that EPA

is under no obligation to initiate formal consultation where the action

is not

[[Page 65051]]

likely to adversely affect listed species. The commenters believe that

because the state must administer the same program EPA does, there is

no change to the ``environmental baseline,'' and therefore jeopardy ``

* * * is not remotely likely.'' The commenters object to the conditions

of the agreements reached by EPA, ODEQ and FWS during informal

consultation, and believes them to be equivalent to ``reasonable and

prudent measures'' more appropriate to a formal consultation. The

commenter does not believe EPA has the authority to object to state

issued permits for their potential effects on listed or proposed

species. Additionally, the commenter does not agree with EPA, ODEQ, and

FWS to include proposed species or habitat in the consultation

agreements.

Response: The commenters refer to ``EPA's review and approval of a

state permitting program'' and compares it to EPA's review of state

issued permits. It is from this comparison that some confusion for the

commenters may arise. The approval of a state program under section 402

of the CWA is a federal authorization and not simply a review of the

state's documents. EPA views the approval as ``discretionary'' in that

it must work with the state to develop mutual agreements in the MOA

which is then signed by both agencies.

The regulations implementing the ESA includes in the term ``action

* * * all activities or programs of any kind authorized, funded,

carried out, in whole or in part, by Federal agencies in the U.S. or on

the high seas.'' (50 CFR 402.02) When an action is determined by the

agency to have the potential to ``affect'' listed species or critical

habitat, the agency must consult or confer with the FWS (and for marine

species National Marine Fisheries Service) to determine if species will

be adversely effected. The agencies involved may elect to start with

informal consultation. During this optional process the FWS `` * * *

may suggest modifications to the action that the Federal agency and any

applicant could implement to avoid the likelihood of adverse effects to

listed species or critical habitat.'' (50 CFR 402.13) This process may

also be applied to avoid jeopardy of a species which have been proposed

for listing (50 CFR 402.10). Including agency ``conferences'' on

proposed species and their habitat helps avoid the need for

reinitiation of consultation after proposed species have been formally

listed.

The consultation conducted by Region 6, ODEQ, and FWS applies to

future actions by the state which could jeopardize listed or proposed

species. No environmental baseline exists for the proposed state run

program. If any ``programmatic'' environmental baseline exists, it

applies only to past permitting actions issued by EPA and not future

actions that may be issued by the State. A state program is operated in

lieu of the federally administered NPDES program. The program is based

not on CWA and its implementing regulations, but instead on state

regulations and statutes. A state program cannot be judged on the

baseline of the federal system that preceded it.

While it may not be clear that the section 7 consultation is

specifically required for a program authorization, ESA and its

implementing regulations do not restrict any agency from voluntarily

consulting and conferring with Fish and Wildlife Service on actions it

believes may affect listed species. The commenter for the association

himself stated that `` * * * whether EPA was required to consult with

FWS is not the issue * * *.'' EPA working cooperatively with ODEQ and

FWS did informally confer and consult on species and habitat protection

in the State of Oklahoma. This cooperation resulted in the agreements

cited by the commenters. Region 6 believes consultation conducted on

the authorization of a state NPDES program is consistent with the

intent, definitions and the requirements of the ESA and CWA. The

conditions of the agreements were placed in the EPA/ODEQ MOA to ensure

that EPA and ODEQ had clear responsibilities with regard to carrying

out the agreements.

EPA's authority to object to state issued permits is outlined in 40

CFR 123.44 which provides that EPA may object to the issuance of a

permit which does not comply with the CWA, regulations, or the MOA; or,

would in any other respect be outside the requirements of the CWA or

its implementing regulations. CWA section 301(b)(1)(C) incorporates in

the Act's protection any more stringent requirements required by any

other Federal law or regulation. Region 6 does not believe that the

conditions of the consultation agreements go beyond the authority of

EPA to object to state issued NPDES permits.

4. Issue: A citizens group located in Grove, Oklahoma expressed

concern that they had not been satisfied with ODEQ response to

complaints they had made regarding the water quality of Cave Springs

and Honey Creek, and the discharge of wastewater from Simmons

Industries in Missouri. These citizens were bothered that the tone of

the notices proposing this program were ``pro-industry.'' These

citizens ask DEQ why it feels competent to take responsibility for the

NPDES program; and ask EPA if it is not an important link in the

protection of environmental resources. These citizens also express

concern regarding agricultural industries.

Response: While the commenters may have a legitimate concern about

the impacts of Simmons Industries on the water quality of Cave Springs

and Honey Creek, the wastewater discharges cited by the citizens are

regulated by the Missouri Department of Natural Resources (MDNR), not

ODEQ. ODEQ may comment on the issuance of permits outside its

jurisdiction which may impact water quality in Oklahoma, and may appeal

to EPA if permits issued in Missouri do not meet water quality

standards for that stream segment in Oklahoma. However ODEQ is not

authorized to take enforcement action against dischargers in

neighboring states. It is the understanding of Region 6 that ODEQ has

communicated its concerns and those of the citizens to MDNR and EPA,

requesting action to protect the water quality in these streams.

Recently ODEQ has been communicating with Missouri's authorized agency

recommending more stringent limits in the permit which MDNR is

currently drafting.

While ODEQ does not have the authority to address pollutants from

agricultural industries, ODEQ is working to address all point and non-

point sources of pollutants within its jurisdiction. Authorization of

the OPDES program under the CWA may help Oklahoma develop more

comprehensive programs to improve water quality in the State. However,

EPA's specific authorization of the OPDES program does not extend to

programs regulating air and solid wastes, nor does it include point

sources which are not within the jurisdiction of ODEQ or the CWA (see

Scope of the OPDES Program and Clarifications on EPA Authority and

Oversight. A.1. above).

The written agreements of this authorization process will formalize

the partnership which has existed between EPA and ODEQ since the

Oklahoma agency's formation, and will provide the structure for the

side-by-side relationship between the two agencies. Region 6 will

continue to be ready and available to work with ODEQ and the citizens

of Oklahoma to ensure the environment is protected.

The OPDES program, the 43rd state program to be authorized under

section 402 of the CWA, includes pretreatment, federal facilities and

sewage sludge.

[[Page 65052]]

State NPDES Program Status

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

Approved to Approved

Approved state regulate Approved state general

NPDES 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 -- -- 03/04/82

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

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

Florida......................................... 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

Louisiana....................................... 08/27/96 08/27/96 08/27/96 08/27/96

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.................................... 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--(06/14/96 Approved Sludge Prgm)........... 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 04/20/91

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...................................... 42 36 30 31

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

Number of Fully Authorized Programs (Federal Facilities, Pretreatment, General Permits) = 27.

Number of Fully Authorized Programs, Including Sludge = 1.

*: Phased Federal facilities & storm water programs by 2000.

Other Federal Statutes

A. National Historic Preservation Act

Section 106 of the National Historic Preservation Act (NHPA)

requires that all federal agencies must consult with the State Historic

Preservation Officer (SHPO) and the Advisory Council on Historic

Preservation (ACHP) on all federal undertakings which may affect

historic properties or sites listed or eligible for listing in the

National Register of Historic Places. Regulations outlining the

requirements of a section 106 consultation on a federal undertaking are

found at 36 CFR part 800. EPA's approval of the State NPDES permitting

program under section 402 of the Clean Water Act is a federal

undertaking subject to this requirement, but the State's subsequent

issuance of OPDES permits may not be. EPA has thus consulted in

accordance with section 106 of the NHPA to assure protection of

eligible properties will be provided in connection with State permit

actions. In the consultation, EPA, the SHPO and ODEQ outlined

procedures by which ODEQ and the SHPO will confer on permit actions

likely to affect historic properties. These processes are reflected in

a memorandum of understanding signed by EPA and the SHPO on EPA's

oversight role and objection procedures on permits when the two state

agencies can not agree on the protection of historic properties. The

EPA/ODEQ MOA includes conditions for EPA and ODEQ to follow to ensure

that the requirements of the consultation with the SHPO are met.

B. Endangered Species Act

Section 7 of the Endangered Species Act (ESA) requires that all

federal agencies consult on federal actions which may affect federally

listed species to insure they are unlikely to jeopardize the continued

existence of those species or adversely modify their critical

[[Page 65053]]

habitat. Regulations controlling consultation under ESA section 7 are

codified at 50 CFR part 402. EPA's approval of the State permitting

program under section 402 of the Clean Water Act is a federal action

subject to this requirement, but the State's subsequent OPDES permit

actions are not. EPA completed informal consultation with the U.S. Fish

and Wildlife Service (FWS or the Service). In the consultation, EPA,

the Service, and ODEQ outlined procedures by which ODEQ and FWS, will

confer on permits which are likely to affect federally listed species.

These processes are reflected in a Memorandum of Understanding between

the State and FWS. In addition, a consultation agreement has been

reached between EPA and FWS on EPA's oversight role and objection

procedures when ODEQ and FWS cannot agree on the protection of species

in an individual State permit action. These conditions are reflected in

the EPA/ODEQ MOA.

I hereby authorize the OPDES program in accordance with 40 CFR part

123.

Dated: November 19, 1996.

Jane N. Saginaw,

Regional Administrator.

[FR Doc. 96-31274 Filed 12-9-96; 8:45 am]

BILLING CODE 6560-50-P