Streamlining the State Sewage Sludge Management Regulations

SUMMARY: The Environmental Protection Agency (EPA) today proposes to

amend its regulations that establish the requirements for States

seeking approval to operate sewage sludge permit programs pursuant to

section 405(f)(1) of the Clean Water Act. These requirements are now

found at 40 CFR parts 123 (for National Pollutant Discharge Elimination

System (NPDES) programs) and 501 (for non-NPDES programs). Both sets of

requirements were modeled on the NPDES requirements for authorization

of wastewater effluent discharge programs. Many States manage sewage

sludge through their solid waste programs which are often structured

differently from the NPDES programs. As a result, existing State sewage

sludge programs may require significant changes in order to meet all

the requirements of parts 123 or 501. EPA is eager for States with

well-run sewage sludge management programs to obtain approval to

operate their own permit programs under section 405(f)(1) without

having to make unnecessary administrative and programmatic changes

unrelated to protection of public health and the environment. The

proposed changes would streamline the regulations to ease the

authorization process for States, provide flexibility to States in

implementing their permit programs and ensure that permitting

determinations are based on environmental and public health

considerations.

DATES: In order to be considered, comments must be received on or

before May 12, 1997.

ADDRESSES: Comments should be addressed to State Sewage Sludge

Management Rule Comment Clerk, Water Docket MC-4101; U.S. Environmental

Protection Agency, 401 M Street, SW., Washington, DC, 20460. Commenters

are requested to submit an original and 3 copies of their written

comments as well as an original and 3 copies of any attachments,

enclosures, or other documents referenced in the comments. Commenters

who want receipt of their comments acknowledged should include a self-

addressed, stamped envelope. All comments must be postmarked or

delivered by hand by May 12, 1997. No facsimiles (faxes) will be

accepted.

EPA will also accept comments electronically. Comments should be

addressed to the following Internet address: [email protected].

Electronic comments must be submitted as an ASCII file avoiding the use

of special characters and any form of encryption. Electronic comments

will be transferred into a paper version for the official record. EPA

will attempt to clarify electronic comments if there is an apparent

error in transmission. Comments provided electronically will be

considered timely if they are submitted electronically by 11:59 p.m.

(Eastern time), May 12, 1997. EPA is experimenting with electronic

commenting; therefore commenters may want to submit both electronic

comments and duplicate paper comments. This document has also been

placed on the Internet for public review and downloading at the

following location: gopher.epa.gov.

The public may inspect the administrative record for this

rulemaking at EPA's Water Docket, 401 M Street, SW., Washington, DC

20460, Room L-102 between the hours of 9 a.m. and 3:30 p.m. on business

days. For access to docket materials, please call (202) 260-3027 for an

appointment during the aforementioned hours. A reasonable fee will be

charged for copying.

FOR FURTHER INFORMATION CONTACT: Wendy Bell, (202) 260-9534, Permits

Division (4203), U.S. EPA, 401 M Street, SW., Washington, DC 20460.

SUPPLEMENTARY INFORMATION:

Regulated entities

Entities potentially regulated by this action are governmental

entities responsible for implementation of the State Sewage Sludge

Management Program. Regulated entities include:

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

Examples of regulated

Category entities

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

State government........................... States that request

authorization of their

State sewage sludge

management program.

Federal government......................... EPA regional offices that

approve State sewage

sludge management

programs.

Local government........................... Owners and operators of

treatment works treating

domestic sewage.

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

This table is not intended to be exhaustive, but rather provides a

guide for readers regarding entities likely to be regulated by this

action. This table lists the types of entities that EPA is now aware

could potentially be regulated by this action. Other types of entities

not listed in the table could also be regulated. To determine whether

your organization is regulated by this action, you should carefully

examine the applicability criteria in parts 123 and 501 of title 40 of

the Code of Federal Regulations. If you have questions regarding the

applicability of this action to a particular entity, consult the person

listed in the preceding ``FOR FURTHER INFORMATION CONTACT'' section.

Information in the preamble is organized as follows:

I. Background

A. Water Quality Act of 1987

B. EPA's Sewage Sludge Management Program

II. Discussion of Proposed Rule

A. General

B. Part 123

C. Part 501

III.Regulatory Requirements

A. Executive Order 12866

B. Executive Order 12875

C. Paperwork Reduction Act

D. Regulatory Flexibility Act

E. Unfunded Mandates

I. Background

Implementation of the Clean Water Act (CWA) has increased the

extent to which wastewater is treated before being discharged to

surface waters. At publicly owned treatment works (POTWs),

implementation of secondary and advanced treatment requirements under

the NPDES Program has improved effluent quality while increasing the

amount of sewage sludge being generated. Proper management of this

growing amount of sewage sludge is becoming increasingly important as

efforts to remove pollutants from wastewater become more effective.

Several options exist for dealing with these vast quantities of

sewage sludge. One such option is beneficial use. EPA considers sewage

sludge a valuable resource since it contains nutrients and has physical

properties that make it useful as a fertilizer and soil

[[Page 11271]]

conditioner. Sewage sludge has been used for its beneficial qualities

on agricultural lands, in forests, for landscaping projects, and to

reclaim strip-mined land. EPA will continue to encourage such

practices.

Regulation of the use or disposal of sewage sludge is important,

however, because improper use or disposal can adversely affect surface

water, ground water, wetlands, and public health through a variety of

exposure pathways. The multi-media nature of the risks and exposure

pathways requires a comprehensive approach to protect public health and

the environment in order to promote the beneficial use of sewage sludge

and ensure that solving problems in one medium will not create problems

for another.

EPA recognizes that the term ``biosolids'' is now being used by

professional organizations and other stakeholders in place of ``sewage

sludge'' to emphasize that it is a resource that can be recycled

beneficially. EPA intends to work with these stakeholders to establish

a definition for ``biosolids'' that is consistent with the definition

of ``sewage sludge'' in the CWA. In the meantime, EPA encourages the

use of the term ``biosolids'' in order to promote beneficial use of

residuals of wastewater treatment.

A. Water Quality Act of 1987

Section 406 of the Water Quality Act of 1987, which amended section

405 of the CWA, established a comprehensive program for reducing the

risks to public health and the environment from the use or disposal of

sewage sludge, including promulgation of sewage sludge standards.

Furthermore, the 1987 amendments required that all NPDES permits issued

to POTWs and other treatment works treating domestic sewage (TWTDS)

contain conditions implementing sewage sludge standards, unless such

conditions are included in other permits. The other permits may either

be other federal permits or State permits issued under approved State

programs. The amendments also provided that the Administrator may issue

separate sewage sludge permits to TWTDS that are not subject to section

402 of the CWA or to any of the other listed permit programs. Moreover,

the amendments provided that the standards for use or disposal are

enforceable directly against any user or disposer of sewage sludge

under section 405(e) of the CWA. In other words, a TWTDS, as well as

any user or disposer, must comply with the standards by the statutory

compliance deadlines whether or not a permit incorporating the

standards has been issued to the TWTDS.

B. EPA's Sewage Sludge Management Program

In 1989, EPA published regulations that establish the requirements

and procedures a State must follow to obtain approval to operate a

State sewage sludge management program under section 405(f)(1) of the

CWA. These regulations established the requirements for States that

chose to implement their sewage sludge programs through existing State

National Pollutant Discharge Elimination System (NPDES) programs (40

CFR part 123) as well as requirements for States that chose non-NPDES

sewage sludge programs (40 CFR part 501) as the vehicle for managing

sewage sludge in their States. These regulations also revised the NPDES

permit requirements and procedures (parts 122 & 124) to incorporate

sewage sludge permitting requirements. See 54 FR 18716 (May 2, 1989).

On February 19, 1993 (58 FR 9404) these regulations were modified to

allow for phased permit application submittal procedures. The basic

requirements and procedures for States which seek EPA approval to

administer a sewage sludge management program are the same under Part

123 and Part 501. EPA published the requirements in both places based

on the belief that States that choose to add sewage sludge to their

NPDES program would find it easier if the requirements and approval

procedures for the sewage sludge program were included along with the

other NPDES requirements in Part 123.

State assumption of the sewage sludge program is optional and until

State sewage sludge programs are authorized, EPA will administer the

program. Two States (Utah and Oklahoma) have been authorized at this

time. EPA is working with a number of other States seeking

authorization for the federal sewage sludge permit and management

program.

In discussions with these States, EPA found that the sewage sludge

management program regulations were often a barrier to authorization.

Given the wide and successful regulation of sewage sludge use or

disposal by a number of States, EPA undertook a review of its

regulations looking at ways to simplify the approval process.

In order to provide greater flexibility to the States, EPA is

proposing modifications to its sewage sludge management program

regulations that accommodate more variations in State programs. EPA

stresses that its willingness to allow greater variation in the State

permit programs does not mean that the Agency will approve State

programs that do not provide adequate public health and environmental

protection.

II. Discussion of Proposed Rule

A. General

EPA started the process that led to today's proposal by reviewing

information provided by States with active State sewage sludge

programs. EPA then solicited input on two successive draft proposals

from various stakeholders, including States, associations and

environmental groups. Today's proposal is an outgrowth of that process

and incorporates many of the comments received on both drafts. EPA

today proposes changes to Parts 123 & 501 that will provide more

flexibility to States and ease the process of authorization. Under the

current regulations, States that choose to implement sludge

requirements through their NPDES program must meet the requirements and

follow the procedures in Part 123. States that want to obtain approval

for an existing non-NPDES program must comply with the procedures and

requirements in Part 501. However, these requirements for authorization

under an NPDES or other type of program are very similar.

As part of an overall effort to eliminate unnecessary regulations,

EPA is today proposing to delete the provisions of Part 123 that

contain State program requirements applying solely to sewage sludge.

Under today's proposal, States seeking approval to operate a State

sewage sludge management program under section 405(f)(1) would meet the

requirements and procedures in Part 501 when submitting sewage sludge

management programs. A State would be free to operate an approvable

sewage sludge management program as part of its existing State NPDES

regulatory program or as part of its State solid waste management

program or as part of another program. The requirements and procedures

for approval are the same. Today's proposal is not intended to preclude

States from amending their existing, approved NPDES programs to include

sewage sludge. In fact, EPA believes that many States will choose this

route when they seek approval of their sewage sludge programs. States

that intend to rely on their existing NPDES programs for regulation of

sewage sludge may need to modify their program to comply with Part 501.

All sewage sludge programs approved under Part 501 must provide for

citizen suits and public participation in state enforcement

proceedings, whether a

[[Page 11272]]

State program is managed through an NPDES program or not. Section

501.17(d) contains the same requirements for public participation in

State enforcement proceedings as Sec. 123.27(d). Section 505 of the CWA

allows citizen suits to be brought for any violation of Part 503 or an

equivalent State regulation.

Because existing Part 501 was modeled on the NPDES program, States

that manage their sewage sludge through solid waste or other programs

may have difficulties in meeting some of its procedural requirements

because these programs have different requirements. Today's proposal

modifies some of the requirements in Part 501 to make it easier for

States with well-run sewage sludge programs to obtain approval for

their programs.

B. Part 123

Part 123 establishes the program requirements and approval

procedures for States that seek EPA approval to administer an NPDES

permit program pursuant to section 402 of the CWA. Today's proposal

would modify Part 123 by deleting certain specific references to sewage

sludge requirements in order to make it clear that all State sewage

sludge programs (both NPDES and non-NPDES) would be subject to the

requirements in Part 501. The deleted references occur in Secs. 123.1,

123.2, 123.22, 123.24 through 123.26, and 123.45. The proposal also

amends Secs. 123.42, 123.44, and 123.62 through 123.64 to clarify the

cross-references in the Part 123 sections that apply to sewage sludge

and NPDES State programs.

C. Part 501

1. Purpose and Scope

Section 501.1 describes the general requirements for EPA approval

of a State sewage sludge program. Today's proposal would modify

Sec. 501.1(b) to explain that Part 501 specifies the requirements and

procedures for approval of all State sludge management programs, both

NPDES and non-NPDES.

Section 501.1(d)(1) and the rest of paragraph (d) have been

renumbered because the existing text does not have a Sec. 501.1(d)(2).

Section 501.1(d)(1) currently requires a State sludge management

program to have the authority to address sewage sludge transport and

storage. Today's proposal would delete this requirement because there

are no Federal standards that regulate the storage of sewage sludge for

less than two years or sewage sludge transport. Where sewage sludge

remains on the land for longer than two years, it is deemed to be

surface disposal rather than storage under 40 CFR 503.20(b) and is

regulated under Part 503. EPA is considering development of a guidance

document to provide information on appropriate sewage sludge storage

methods.

The existing language in this section includes a requirement for

State sewage sludge programs to include Federal facilities. This

requirement is not being changed in today's proposal. A State does not

have to have Federal facility authority for NPDES in order for its

sewage sludge program to be approved. If a State does not have Federal

facility authority, these facilities would be regulated under a non-

NPDES program, whether or not other facilities are regulated under

NPDES.

The proposed language in this section would clarify that a State

must have the authority to regulate only those sewage sludge management

activities covered by Part 503. A State would not need the authority to

regulate a practice not covered by Part 503, such as making bricks out

of sewage sludge. The current Sec. 501.1(d)(1)(ii) contains a list of

the covered sewage sludge use or disposal practices. For consistency

with the terminology used in Part 503, today's proposal would delete

the phrase ``distribution and marketing'' since this sewage sludge use

is regulated as ``land application,'' and clarify that ``landfilling''

takes place at ``municipal solid waste landfills.'

Existing Sec. 501.1(d)(1) contains a reference to a nonexistent

section--40 CFR 123.30. Today's proposal replaces this with a reference

to a new paragraph (m) that is added to this section. Proposed

Sec. 501.1(m) describes the requirements for a partial sewage sludge

program.

CWA Section 405(f) authorizes the Administrator to approve State

programs which assure compliance with section 405 requirements.

Pursuant to this authority, EPA is proposing in today's notice to allow

partial sewage sludge management programs under Part 501. Proposed

Sec. 501.1(m) would allow a State to submit a partial sewage sludge

management program covering one or more of the sludge use and disposal

practices falling under the jurisdiction of the administering State

agency or department. The State agency seeking program approval would

be required to assume a complete permitting program with respect to the

covered practice(s). Some States regulate septage use and disposal

under different management programs than sewage sludge. In the case of

those States, EPA would approve a partial program for land application,

for example, that regulated only sewage sludge and excluded septage

from its regulatory scope.

Section 405(f)(1) of the Clean Water Act (CWA) requires that any

NPDES permit issued to a publicly owned treatment works or other

treatment works treating domestic sewage must include conditions to

implement the sewage sludge regulations issued under Section 405(d)

unless these conditions have been included through certain other

specified permits, including permits under a State permit program if

EPA determines ``such programs assure compliance with any applicable

requirements'' of section 405. The provisions of current

Sec. 501.1(c)(2) require that any complete sludge management program

submitted for approval must include such authority. EPA is proposing to

implement its approval of partial programs in the same manner. An

approvable partial program must include the authority to permit both

POTWs and other treatment works associated with the identifiable use

and disposal option for which the State seeks authorization.

With respect to the practice(s) covered by the partial program, the

State agency would be required to meet the requirements of CWA section

405, and would have to be able to implement the applicable requirements

of 40 CFR part 503. The State must be able to clearly identify who

falls within the State program, and there must be no area in which

authority over a particular group is unclear.

The proposal would also clarify requirements for the partial

program with respect to the Attorney General's Statement, the Program

Description, and the Memorandum of Agreement (MOA) between EPA and the

State.

In addition to the information required for the Program Description

under Sec. 501.12, the State submission would have to explain how the

program will operate, including the relationship between the partial

program and the unassumed part which would remain under EPA control. In

addition to the information required for the MOA under Sec. 501.14, the

State submission would have to delineate responsibilities of both the

State and EPA in administering the partial program.

2. Definitions

Today's proposal adds a definition of ``TWTDS,'' the acronym for

``treatment works treating domestic sewage.'' The acronym replaces the

phrase throughout the regulation.

[[Page 11273]]

3. Program Description

In order to ensure that a State program can be properly run,

Sec. 501.12 requires a description of various program elements. EPA

does not believe the current level of detail is necessary. Today's

proposal would revise the language in Secs. 501.12(b) and 501.12(d) to

contain the information that EPA believes is necessary in a program

description.

The current language in Secs. 501.12(b) (2) and (3) requests

information on program costs and funding sources for a program's first

two years. This information is necessary to show that a State has the

resources to properly carry out a new sewage sludge management program.

Many States have had programs established for many years. For States

that have at least 2 years of active experience implementing a sewage

sludge regulatory program, cost and funding information is not

necessary since they have already shown that they have the necessary

resources to run effective programs. The proposed language would

require this information only for State programs that have been in

existence for less than two years.

The current language in Sec. 501.12(d) requires submittal of forms

that the State intends to use in its program.

EPA wants to ensure that the required information is collected but

does not require use of specific forms. Therefore, the proposed

language would require either submittal of forms or the procedures used

for obtaining information.

EPA agrees with several commenters that States should have an

inventory of all TWTDS but should not be required to develop an

inventory of land application sites. The language in proposed

Sec. 501.12(f) has been modified accordingly.

4. Memorandum of Agreement With the Regional Administrator

The proposed changes to Sec. 501.14(a) would clarify that the

Regional Administrator approves the memorandum of agreement (MOA).

The proposed change to Sec. 501.14(b)(1)(i) would clarify that

permit-related information is only transferred from EPA to a State with

respect to the portion of the State program for which the State has

obtained approval. For example, if a State were seeking a partial

program for land application, information on pending permit

applications or compliance information for incinerators would not be

transferred to the State.

The other changes in Sec. 501.14(b) would delete some of the

current waiver prohibitions. EPA believes that waiver of review of

permits for ``Class 1 sludge management facilities'' is an issue that

should be decided by the affected State and EPA Regional office. EPA

believes that the Regional Administrator should be able to terminate a

waiver, but only after providing a written explanation of the reason

for the termination.

The current language in Sec. 501.14(c) requires all permit related

documents to be sent to EPA. The proposed language would require

documents to be sent only when requested by EPA. This would eliminate

the transmission of documents that EPA does not intend to review. This

change would not reduce EPA's ability to obtain any permit related

documents. Section 501.19 requires compliance with Sec. 123.41, the

NPDES section that requires a State to make available to EPA ``any

information obtained or used in the administration of a State program'.

Section 501.14 also States that the Regional Administrator will

normally notify the State at least 7 days before an EPA facility

inspection. Today's rule would delete that language and allow the

region and State to decide whether such a time period should be

included in the MOA.

5. Requirements for Permitting

The current provisions of Sec. 501.15 describe the procedural

requirements that a State must follow in issuing permits in order to

obtain EPA authorization to operate a section 405(f) sewage sludge

management program. Many States operate well-managed sewage sludge

programs that are organized differently than the NPDES model. EPA

believes that the specific permitting requirements prescribed in

Sec. 501.15 are not always necessary to ensure compliance with the part

503 regulations and may have provided unnecessary obstacles to

authorization of State sludge management programs. EPA considered

removing the majority of these requirements from Sec. 501.15. However,

a number of States have laws that prohibit the State's adoption of more

stringent requirements than EPA. EPA is concerned that removal of these

permitting procedural requirements--a move aimed at simplifying the

approval process--may, because of these State law provisions, have the

perverse result of requiring a State to modify its existing program in

order to obtain EPA approval for the program. In this case, deletion of

the permitting requirements could make the authorization process more

difficult for some States while easing it for others. EPA is asking for

further information on this issue.

Today's proposal would retain most of the requirements for

permitting but would allow States to follow their existing practices in

many instances. In some cases the Regional Administrator would have to

decide whether the State's procedural requirements are comparable to

those required by this provision. EPA recognizes that this may result

in inconsistency in State program implementation, but believes that

procedural inconsistency is not a significant concern in this program

and that the added flexibility far outweighs any potential problems.

EPA requests comments on this approach.

EPA is proposing to delete Sec. 501.15(a)(2) that contains the

specific information requirements for permit applications. Instead, in

Sec. 501.15(d)(1)(ii), EPA proposes to require the information listed

in 40 CFR 122.21(q). EPA proposed these revised requirements on

December 6, 1995 (60 FR 62546). EPA is currently reviewing all comments

received on that proposal. As proposed, Sec. 122.21(q) would reduce the

burden on permittees by allowing State directors to waive information

requirements if they have access to substantially identical

information, and by modifying the land application plan requirements to

require advance public notice in the manner prescribed by State and

local law.

Today's proposal would also remove Secs. 501.15(a) (3) and (4)

because these requirements are repeated in Sec. 501.15(b). The CWA

limits the terms of NPDES permits to no more than five years. Today's

proposal would modify current Sec. 501.15(a)(5) to allow a State to

issue non-NPDES sewage sludge permits for terms of no more than 10

years. EPA believes this is a good compromise between those who want to

limit all sewage sludge permits to 5 years to insure that the

permitting authority is aware of changed circumstances and those who

believe permits do not need to expire, but should simply be modified if

circumstances change. EPA realizes that some States issue permits for

longer than 10 years and requests comments on this issue of how best to

use scarce resources effectively and insure adequate protection of

public health and the environment.

Today's proposal would modify Sec. 501.15(b) to require that all

permits issued by the State include the listed permit conditions unless

comparable conditions are provided for in the MOA. This would provide

flexibility to both the Region and the State. This proposed change is

not intended to imply that permittees can choose which conditions to

put into permits. EPA recognizes that States have different types of

permitting

[[Page 11274]]

systems. Some of the permit conditions in Sec. 501.15(b) are

established by States as regulatory requirements for all TWTDS. Other

conditions are required by 40 CFR part 503. Since all users or

disposers of sewage sludge must comply with Part 503 whether or not

they have a permit, requirements contained in part 503 do not have to

be repeated in a permit to require compliance.

This section also contains several other specific proposed changes.

Section 501.15(b)(10) would delete the language that requires a minimum

of once per year monitoring. This change is necessary if Part 503 is

modified as proposed to allow less than once per year monitoring. This

proposal was published on October 25, 1995 (60 FR 54771).

The last sentence in Sec. 501.15(b)(13) would be deleted because

this permit condition has already been stated in Sec. 501.15(b)(2). EPA

is also proposing to modify Sec. 501.15(b)(14) to clarify that a

permittee that has applied for reissuance of a permit does not need to

cease operations if the new permit is not issued before the term of an

existing permit expires. This provision is consistent with section

558(b) of the Administrative Procedure Act that provides for the

continuing effectiveness of permits and licenses when the permittee has

filed a timely and sufficient application for renewal.

Today's proposal would modify Sec. 501.15(d) to require the listed

permit procedures unless comparable State requirements are in place.

This provision would provide flexibility for accommodating varying

State requirements that protect public health and the environment.

EPA is proposing to change Sec. 501.15(d)(1)(i) to clarify which

TWTDS must apply for a permit. Applications are only required from

TWTDS whose use or disposal method is regulated under part 503. A POTW

that made bricks out of all of its sewage sludge would not be required

to submit an application. An industrial facility (except a privately

owned treatment works treating domestic sewage) would also not be

required to apply at this time because such facilities are not

currently covered by part 503. See 54 FR 18727 and 58 FR 9406.

Permit applications are to be submitted to the State only for a use

or disposal practice for which the State has obtained approval to

operate a section 405(f) sewage sludge management program. If a State

implements a partial program, permit applications for use or disposal

practices not covered by the State program must still be submitted to

the EPA region.

Finally, if a TWTDS is covered under a State's sewage sludge

general permit, it would follow the State's notification procedures

rather than submit an individual permit application.

EPA is proposing to delete existing Sec. 501.15(d)(1)(ii)(A). This

provision was intended to allow the permitting authority to obtain

applications for incinerators and others who requested site-specific

pollutant limits before other applications because these permits would

take the most time to issue and incinerators were believed to pose the

greatest risk to public health. However, there have been few requests

for site-specific permits. In addition, proposed changes to Part 503

(60 FR 54771) would make the incineration standard totally self-

implementing along with the rest of the rule, i.e., the standard must

be met whether or not a permit is issued. Therefore, this paragraph is

no longer necessary. As described in Sec. 501.15(d)(1)(ii)(C), the

Director may require permit applications from any TWTDS at any time if

necessary to protect public health and the environment.

EPA is proposing to redesignate existing Sec. 501.15(d)(1)(ii)(B)

as Sec. 501.15(d)(1)(ii)(A) and to change the regulatory citation for

the required application information.

EPA is proposing to redesignate existing Sec. 501.15(d)(1)(ii)(C)

as Sec. 501.15(d)(1)(ii)(B). This section lists the limited background

information requested of non-NPDES TWTDS. EPA is also proposing to

modify proposed Sec. 501.15(d)(1)(ii)(B)(3) to be consistent with the

full permit information requirements as proposed in Sec. 122.21(q). If

sewage sludge meets the ``exceptional quality'' requirements, no

additional information is required about land application sites or

facilities that further treat the sewage sludge.

Section 501.15(d)(4) currently requires fact sheets for draft

permits containing case-by-case permit conditions or land application

plans. They are also required for Class I sludge management facilities

or draft permits that are the subject of widespread public interest or

raise major issues. EPA is proposing to revise this section to require

a fact sheet only when a permit is the subject of widespread public

interest or raises major issues. In addition, EPA would revise this

provision to delete the list of the specific information required to be

included in a fact sheet.

EPA is proposing these changes to provide additional flexibility to

States in operating their sewage sludge permit programs. EPA believes

that the basis for a permit should be available to the public but does

not believe that a fact sheet is the only available option. For

example, in some States the basis for the permit may be the State's

sewage sludge regulations. In this situation a fact sheet would not be

necessary.

EPA is proposing to change Sec. 501.15(d)(5) by inserting the

phrase ``meeting or hearing'' in place of ``hearing'' throughout the

section. This change would simplify the approval process for States

whose public participation requirements for permit issuance call for

public ``meetings'' rather than ``hearings''. This modification in the

regulations would obviate the need in States with such requirements for

a change in State law in order to obtain approval.

Today's proposal would modify the requirement that the State

provide at least a 30-day comment period on the draft permit. Some

States require public notification of a permit application so the

public has the opportunity to review the application and request a

public hearing before a draft permit is issued. In this situation a 30-

day comment period after issuance of a draft permit may not be

necessary. Today's proposal would also delete the requirement for 30

days notice before a meeting or hearing. These changes are not intended

to suggest that a State should not provide an adequate comment period

or adequate advance notice of any hearing or meeting. State law must

provide the public both timely and meaningful opportunity to

participate in its permitting determinations. This means that a State's

procedures must be reasonably calculated to apprise the public of the

nature of any proposed permitting action as well as provide the public

with an opportunity to submit its view on the proposed permitting

action.

Today's proposal is merely intended to allow the States the

flexibility to follow their current public notice procedures that may

provide for public notice at different times in the permitting process.

Proposed changes to Sec. 501.15(d)(5) would allow the State

flexibility in the method used to provide public notice. The MOA could

be used to specify required methods, if deemed necessary by an EPA

Region.

6. Requirements for Enforcement Authority

EPA is proposing to revise the language of Sec. 501.17 to clarify

the intent of the section. A State must have the authority to assess

civil penalties or criminal fines in, at least, the amounts listed.

States are not required to impose these or any other specific penalties

in any civil or criminal proceeding, and

[[Page 11275]]

State law may, of course, authorize the imposition of larger penalties.

7. Program Reporting to EPA

The current requirements in Sec. 501.21 require extensive

information on noncompliance to be reported semiannually to EPA by the

State program director. EPA is attempting to streamline all of its

reporting requirements, including the information requested from

States. The proposal would reduce the information required from States

and would require annual reports that contain only the information that

EPA believes would be of most value in reviewing a States's sludge

management program.

8. Procedures for Revision of State Programs

The current language in Sec. 501.32 requires a State to revise its

program within one or two years of promulgation of changes to the

sewage sludge regulations. The proposed change would allow EPA and the

State to agree to a different schedule in the MOA. As the MOA is part

of the State program submittal, comments on this or any other issue in

the MOA can be raised when the State program is public noticed in the

Federal Register. Because the sewage sludge regulations are directly

enforceable, TWTDS must comply with any new Federal sewage sludge

requirements, whether or not the State has modified its regulations to

conform with the Federal rule.

III. Regulatory Requirements.

A. Executive Order 12866

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the

Agency must determine whether the regulatory action is ``significant''

and therefore subject to Office of Management and Budget (OMB) review

and the requirements of the Executive Order. The Order defines

``significant regulatory action'' as one that is likely to result in a

rule that may:

(1) Have an annual effect on the economy of $100 million or more or

adversely affect in a material way the economy, a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligations of recipients

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.

It has been determined that this rule is not a ``significant

regulatory action'' under the terms of Executive Order 12866 and is

therefore not subject to OMB review.

B. Executive Order 12875

Under Executive Order 12875 (58 FR 58093, October 28, 1993),

entitled Enhancing the Intergovernmental Partnership, the Agency is

required to develop an effective process to permit elected officials

and other representatives of State, local, and tribal governments to

provide meaningful and timely input in the development of regulatory

proposals.

EPA began development of today's proposal by soliciting suggested

changes from a group of volunteer States. Their suggestions were used

to develop a first draft of proposed rule changes that was sent on

February 7, 1996 to States, tribes, environmentalists, and other

stakeholders. On May 10, 1996, EPA sent out a second draft to the same

stakeholders. The comments received on both drafts were used to develop

today's rule.

C. Paperwork Reduction Act

The information collection requirements for parts 123 and 501 were

approved by OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 et

seq. (See OMB 2040-0057, June 14, 1995.) The proposed rule changes are

designed to streamline the regulatory process and will not impose any

new information collection requirements.

D. Regulatory Flexibility Act

Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, EPA

must prepare a regulatory flexibility analyses for regulations that

have a significant impact on a substantial number of small entities.

Today's proposal would only apply to States seeking to obtain EPA

authorization for their State sewage sludge permit programs and States

are not considered small entities under the RFA. EPA is not proposing

to establish any requirements that are applicable to small entities as

defined by the statute. Pursuant to section 605(b) of the Regulatory

Flexibility Act, 5 U.S.C. 605(b), the Administrator certifies that this

rule will not have a significant economic impact on a substantial

number of small entities.

E. Unfunded Mandates

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, or tribal governments, in

the aggregate, or to the private sector, of $100 million or more in any

one year. Before promulgating an EPA rule for which a written statement

is needed, section 205 of the UMRA generally requires EPA to identify

and consider a reasonable number of regulatory alternatives and adopt

the least costly, most cost-effective or least burdensome alternative

that achieves the objectives of the rule. The provisions of section 205

do not apply when they are inconsistent with applicable law. Moreover,

section 205 allows EPA to adopt an alternative other than the least

costly, most cost-effective or least burdensome alternative if the

Administrator publishes with the final rule an explanation why that

alternative was not adopted.

Before EPA establishes any regulatory requirements that may

significantly or uniquely affect small governments, including tribal

governments, it must have developed under section 203 of the UMRA a

small government agency plan. The plan must provide for notifying

potentially affected small governments, enabling officials of affected

small governments to have meaningful and timely input in the

development of EPA regulatory proposals with significant Federal

intergovernmental mandates, and informing, educating, and advising

small governments on compliance with the regulatory requirements.

Today's rule contains no Federal mandates under the regulatory

provisions of Title II of the UMRA for State, local, or tribal

governments or the private sector because the UMRA generally excludes

from the definition of ``Federal intergovernmental mandate'' duties

that arise from participation in a voluntary Federal program. In any

event, EPA has determined that this rule does not contain a Federal

mandate that may result in expenditures of $100 million or more for

State, local or tribal governments or the private sector in any one

year. The proposed amendments provide additional flexibility to the

States in complying with current regulatory requirements and lesson the

burden on affected governments. As noted above, there are no costs

associated with the changes proposed today. Thus, today's proposed rule

is not subject to the requirements in sections 202 and 205 of the UMRA.

[[Page 11276]]

EPA has determined that this rule contains no regulatory

requirements that might significantly or uniquely affect small

governments. The proposed amendments would not significantly affect

small governments because as explained above, the proposed amendments

would provide additional flexibility in complying with pre-existing

regulatory requirements. The proposed amendments also would not

uniquely affect small governments because the increased flexibility

provided by the proposed changes would be available to POTWs operated

by small governments to the same extent as to other sewage sludge users

or disposers.

List of Subjects

40 CFR Part 123

Confidential business information, Hazardous materials, Reporting

and recordkeeping requirements, Sewage disposal, Waste treatment and

disposal, Water pollution control, Penalties.

40 CFR Part 501

Confidential business information, Environmental protection,

Reporting and recordkeeping requirements, Publicly owned treatment

works, Sewage disposal, Waste treatment and disposal.

Dated: February 28, 1997.

Carol M. Browner,

Administrator.

For the reasons set out in the preamble, parts 123 and 501 of title

40 of the Code of Federal Regulations are proposed to be amended as

follows:

PART 123--STATE PROGRAM REQUIREMENTS

1. The authority citation for part 123 continues to read as

follows:

Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.

2. Section 123.1 is amended by revising paragraphs (a) and (c) to

read as follows:

Sec. 123.1 Purpose and Scope.

(a) This part specifies the procedures EPA will follow in

approving, revising, and withdrawing State programs and the

requirements States programs must meet to be approved by the

Administrator under sections 318, 402, and 405(a) (National Pollutant

Discharge Elimination System--NPDES) of the CWA. This part also

specifies the procedures EPA will follow in approving, revising, and

withdrawing State programs under section 405(f) (sludge management

programs) of the CWA. The requirements that a State sewage sludge

management program must meet for approval by the Administrator under

section 405(f) are set out at 40 CFR part 501.

* * * * *

(c) The Administrator shall approve State programs which conform to

the applicable requirements of this part. A State NPDES program will

not be approved by the Administrator under section 402 of CWA unless it

has authority to control the discharges specified in sections 318 and

405(a) of CWA. Permit programs under sections 318 and 405(a) will not

be approved independent of a section 402 program.

* * * * *

3. Section 123.2 is revised to read as follows:

Sec. 123.2 Definitions.

The definitions in Part 122 apply to all subparts of this part.

4. Section 123.22 is amended by removing paragraph (f) and

redesignating paragraph (g) as paragraph (f).

5. Section 123.24 is amended by removing paragraph (d)(8).

6. Section 123.25 is amended by revising the introductory text of

paragraph (a) and paragraph (a)(37) to read as follows:

Sec. 123.25 Requirements for permitting.

(a) All State Programs under this part must have legal authority to

implement each of the following provisions and must be administered in

conformance with each, except that States are not precluded from

omitting or modifying any provisions to impose more stringent

requirements:

* * * * *

(37) 40 CFR parts 129, 133, and subchapter N.

* * * * *

7. Section 123.26 is amended by revising paragraph (e)(5) to read

as follows:

Sec. 123.26 Requirements for compliance evaluation programs.

* * * * *

(e) * * *

(5) Inspecting the facilities of all major dischargers at least

annually.

8. Section 123.42 is amended by revising the introductory paragraph

to read as follows:

Sec. 123.42 Receipt and use of Federal Information.

Upon approving a State permit program, EPA shall send to the State

agency administering the permit program any relevant information which

was collected by EPA. The Memorandum of Agreement under Sec. 123.24

(or, in the case of a sewage sludge management program, Sec. 501.14)

shall provide for the following, in such manner as the State Director

and the Regional Administrator shall agree:

* * * * *

9. Section 123.44 is amended by revising paragraphs (d)(1), (d)(2),

(e), and (j) to read as follows:

Sec. 123.44 EPA review of and objection to State permits.

* * * * *

(d)* * *

(1) Shall consider all data transmitted pursuant to Sec. 123.43

(or, in the case of a sewage sludge management program, Sec. 501.21);

(2) May, if the information provided is inadequate to determine

whether the proposed permit meets the guidelines and requirements of

CWA, request the State Director to transmit to the Regional

Administrator the complete record of the permit proceedings before the

State, or any portions of the record that the Regional Administrator

determines are necessary for review. If this request is made within 30

days of receipt of the State submittal under Sec. 123.43 (or, in the

case of a sewage sludge management program, Sec. 501.21), it shall

constitute an interim objection to the issuance of the permit, and the

full period of time specified in the Memorandum of Agreement for the

Regional Administrator's review shall recommence when the Regional

Administrator has received such record or portions of the record; and

* * * * *

(e) Within 90 days of receipt by the State Director of an objection

by the Regional Administrator, the State or interstate agency or any

interested person may request that a public hearing be held by the

Regional Administrator on the objection. A public hearing in accordance

with the procedures of Sec. 124.12 (c) and (d) (or, in the case of a

sewage sludge management program, Sec. 501.15(d)(7)) shall be held, and

public notice provided in accordance with Sec. 124.10, (or, in the case

of a sewage sludge management program, Sec. 501.15(d)(5)), whenever

requested by the State or the interstate agency which proposed the

permit or if warranted by significant public interest based on requests

received.

* * * * *

(j) The Regional Administrator may agree, in the Memorandum of

Agreement under Sec. 123.24 (or, in the case of a sewage sludge

management program, Sec. 501.14), to review draft permits rather than

proposed permits. In such a case, a proposed permit need not

[[Page 11277]]

be prepared by the State and transmitted to the Regional Administrator

for review in accordance with this section unless the State proposes to

issue a permit which differs from the draft permit reviewed by the

Regional Administrator, the Regional Administrator has objected to the

draft permit, or there is significant public comment.

10. Section 123.45 is amended by removing paragraph (e).

11. Section 123.62 is amended by revising paragraphs (b)(3), and

(c) to read as follows:

Sec. 123.62 Procedures for revision of State programs.

* * * * *

(b)* * *

(3) The Administrator shall approve or disapprove program revisions

based on the requirements of this part (or, in the case of a sewage

sludge management program, 40 CFR part 501) and of the CWA.

* * * * *

(c) States with approved programs shall notify EPA whenever they

propose to transfer all or part of any program from the approved State

agency to any other State agency, and shall identify any new division

of responsibilities among the agencies involved. The new agency is not

authorized to administer the program until approved by the

Administrator under paragraph (b) of this section. Organizational

charts required under Sec. 123.22(b) (or, in the case of a sewage

sludge management program, Sec. 501.12(b)) shall be revised and

resubmitted.

* * * * *

12. Section 123.63 is amended by revising the introductory text of

paragraph (a) and paragraph (a)(4) to read as follows:

Sec. 123.63 Criteria for withdrawal of State programs.

(a) In the case of a sewage sludge management program, references

in this section to ``this part'' shall be deemed to refer to 40 CFR

part 501. The Administrator may withdraw program approval when a State

program no longer complies with the requirements of this part, and the

State fails to take corrective action. Such circumstances include the

following:

* * * * *

(4) Where the State program fails to comply with the terms of the

Memorandum of Agreement required under Sec. 123.24 (or, in the case of

a sewage sludge management program, Sec. 501.14).

* * * * *

13. Section 123.64 is amended by revising the introductory text of

paragraph (a) and paragraph (b)(1) to read as follows:

Sec. 123.64 Procedures for withdrawal of State programs.

(a) A State with a program approved under this part (or, in the

case of a sewage sludge management program, 40 CFR Part 501) may

voluntarily transfer program responsibilities required by Federal law

to EPA by taking the following actions, or in such other manner as may

be agreed upon with the Administrator.

* * * * *

(b) * * *

(1) Order. The Administrator may order the commencement of

withdrawal proceedings on his or her own initiative or in response to a

petition from an interested person alleging failure of the State to

comply with the requirements of this part as set forth in Sec. 123.63

(or, in the case of a sewage sludge management program, Sec. 501.33).

The Administrator shall respond in writing to any petition to commence

withdrawal proceedings. He may conduct an informal investigation of the

allegations in the petition to determine whether cause exists to

commence proceedings under this paragraph. The Administrator's order

commencing proceedings under this paragraph shall fix a time and place

for the commencement of the hearing and shall specify the allegations

against the State which are to be considered at the hearing. Within 30

days the State shall admit or deny these allegations in a written

answer. The party seeking withdrawal of the State's program shall have

the burden of coming forward with the evidence in a hearing under this

paragraph.

* * * * *

PART 501--STATE SLUDGE MANAGEMENT PROGRAM REGULATIONS

14. The authority citation for part 501 continues to read as

follows:

Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.

15. Section 501.1 is amended by revising paragraphs (b) and (d),

and adding paragraph (m) to read as follows:

Sec. 501.1 Purpose and scope.

* * * * *

(b) This part specifies the procedures EPA will follow in

approving, revising, and withdrawing State sludge management programs

under section 405(f), and the requirements State programs must meet to

be approved by the Administrator under section 405(f) of CWA. Sludge

Management Program submissions may be developed and implemented under

any existing or new State authority or authorities as long as they meet

the requirements of this part.

* * * * *

(d) In addition, any complete State Sludge Management Program

submitted for approval under this part shall have authority to address

all sewage sludge management activities used in the State that are

practiced or planned to be practiced in the State and are covered by 40

CFR part 503, unless the State is applying for partial sludge program

approval in accordance with paragraph (m) of this section. The State

sludge management program shall also be applicable to all federal

facilities in the State. Sludge management activities shall include as

applicable:

(1) Land application,

(2) Landfilling in a Municipal Solid Waste Landfill regulated under

40 CFR part 258,

(3) Incineration,

(4) Surface disposal, and

(5) Any other sludge use or disposal practices as may be regulated

by 40 CFR part 503.

* * * * *

(m) A State whose sludge permitting program has not been approved

under part 501 may submit to the Regional Administrator an application

for approval of a partial sewage sludge program that meets the

following requirements:

(1) A partial program submission must constitute a complete

permitting program covering one or more categories of sewage sludge use

or disposal. A complete permitting program includes the issuance of

permits, the monitoring of compliance and, in the event of violations,

enforcement action for all TWTDS engaging in the sewage sludge use or

disposal practice that is the subject of the partial program.

(2) The partial program submission must also address the following

requirements:

(i) The Attorney General's Statement, in addition to the

information required by Sec. 501.13, must clearly explain the

jurisdiction of the administering agency or department;

(ii) The program description, in addition to the information

required by Sec. 501.12, must explain in detail how the program will

operate, including which use and disposal practice(s) the State will

cover. The program description must also explain the relationship and

coordination between the proposed partial sewage sludge program and

that part of the program for which EPA will remain the permitting

authority, including a discussion of the division of

[[Page 11278]]

permitting, enforcement, and compliance monitoring responsibilities

between the State and EPA; and

(iii) The Memorandum of Agreement between EPA and the State, in

addition to the information required by Sec. 501.14, must set out in

detail the responsibilities of EPA and the State in administering the

partial program, including specific provisions for transfer of

information and determination of which TWTDS are included in the

partial program.

16. Section 501.2 is amended by adding a definition to read as

follows:

Sec. 501.2 Definitions.

* * * * *

``TWTDS'' means treatment works treating domestic sewage.

17. Section 501.12 is amended by revising paragraphs (b), (d),

(f)(1)(iv), (f)(1)(v), and (f)(2), and removing paragraph (f)(3) to

read as follows:

Sec. 501.12 Program description.

* * * * *

(b) A description (including organization charts) of the

organization and structure of the State agency or agencies which will

have responsibility for administering the program. If more than one

agency is responsible for administration of a program, the

responsibilities of each agency, and their procedures for coordination

must be set forth, and an agency must be designated as a ``lead

agency'' (i.e., the ``State sludge management agency'') to facilitate

communications between EPA and the State agencies having program

responsibility. If the State proposes to administer a program of

greater scope of coverage than is required by federal law, the

information provided under this paragraph shall indicate the resources

dedicated to administering the federally required portion of the

program. This description shall include:

(1) A description of the general duties and the total number of

State agency staff carrying out the State program;

(2) An itemization of the estimated costs of establishing and

administering the program for the first two years after approval

including cost of the personnel described in paragraph (b)(1) of this

section, cost of administrative support, and cost of technical support,

except where a State is seeking authorization for an established sewage

sludge management program that has been in existence for a minimum of

two years and is at least as stringent as the program for which the

State is seeking authorization; and

(3) An estimate of the sources and amounts of funding for the first

two years after approval to meet the costs listed in paragraph (b)(2)

of this section, except where a State is seeking authorization for an

established sewage sludge management program that has been in existence

for a minimum of two years and is at least as stringent as the program

for which the State is seeking authorization.

* * * * *

(d) Copies of the permit, application, and reporting forms or

procedures the State intends to employ in its program.

* * * * *

(f)(1) * * *

(iv) NPDES, UIC, RCRA, Clean Air Act, and State permit number, if

any, and;

(v) Compliance status.

(2) States may submit either:

(i) Inventories which contain all of the information required by

paragraph (f)(1); or

(ii) A partial inventory with a detailed plan showing how the State

will complete the required inventory within five years after approval

of its sludge management program under this part.

* * * * *

18. Section 501.14 is amended by revising paragraphs (a),

(b)(1)(i), (b)(2), (b)(3), and (c) to read as follows:

Sec. 501.14 Memorandum of Agreement with the Regional Administrator.

(a) Any State that seeks to administer a program under this part

shall submit a Memorandum of Agreement. The Memorandum of Agreement

shall be executed by the State Program Director and the Regional

Administrator and shall become effective when approved by the Regional

Administrator. In addition to meeting the requirements of paragraph (b)

of this section, the Memorandum of Agreement may include other terms,

conditions, or agreements consistent with this part and relevant to the

administration and enforcement of the State's regulatory program. The

Administrator shall not approve any Memorandum of Agreement which

contains provisions which restrict EPA's oversight responsibility.

(b) * * *

(1)(i) Provisions for the prompt transfer from EPA to the State of

pending permit applications applicable to the State program and any

other information relevant to program operation not already in the

possession of the State Director (e.g., support files for permit

issuance, compliance reports, etc.). If existing permits are

transferred from EPA to the State for administration, the Memorandum of

Agreement shall contain provisions specifying a procedure for

transferring the administration of these permits. If a State lacks the

authority to directly administer permits issued by the federal

government, a procedure may be established to transfer responsibility

for these permits.

* * * * *

(2) Provisions specifying classes and categories of permit

applications, draft permits, and proposed permits that the State will

send to the Regional Administrator for review, comment and, where

applicable, objection. These provisions shall follow the permit review

procedures set forth in 40 CFR 123.44.

(3) The Memorandum of Agreement shall also specify the extent to

which EPA will waive its right to review, object to, or comment upon

State-issued permits.

* * * * *

(c) The Memorandum of Agreement shall also provide for the

following:

(1) The circumstances in which the State must promptly send

notices, draft permits, final permits, or related documents to the

Regional Administrator; and

(2) Provisions on the State's compliance monitoring and enforcement

program, including:

(i) Provisions for coordination of compliance monitoring activities

by the State and by EPA. These may specify the basis on which the

Regional Administrator will select facilities or activities within the

State for EPA inspection; and

(ii) Procedures to assure coordination of enforcement activities.

(3) When appropriate, provisions for joint processing of permits by

the State and EPA for facilities or activities which require permits

from both EPA and the State under different programs (see for example

40 CFR 124.4).

(4) Provisions for modification of the Memorandum of Agreement in

accordance with this part.

* * * * *

19. Section 501.15 is amended by revising paragraph (a), the

introductory text of paragraph (b), paragraphs (b)(10)(i), (b)(13),

(b)(14), the introductory text of paragraph (d), paragraph (d)(1), and

(d)(4) through (d)(8), to read as follows:

Sec. 501.15 Requirements for permitting.

(a) General requirements. All State programs under this part shall

have legal authority to implement each of the following provisions and

must be administered in conformance with each, except that States are

not precluded from omitting or modifying any provisions to impose more

stringent requirements:

[[Page 11279]]

(1) Confidentiality of information. Claims of confidentiality shall

be denied for the following information:

(i) The name and address of any permit applicant or permittee;

(ii) Permit applications, permits, and sewage sludge data. This

includes information submitted on the permit application forms

themselves and any attachments used to supply information required by

the forms.

(2) Duration of permits. (i) NPDES permits issued to treatment

works treating domestic sewage pursuant to section 405(f) of the CWA

shall be effective for a fixed term not to exceed five years.

(ii) Non-NPDES Permits issued to treatment works treating domestic

sewage pursuant to section 405(f) of the CWA shall be effective for a

fixed term not to exceed ten years.

(3) Schedules of compliance--(i) General. The permit may, when

appropriate, specify a schedule of compliance leading to compliance

with the CWA and the requirements of this part. Any schedules of

compliance under this section shall require compliance as soon as

possible, but not later than any applicable statutory deadline under

the CWA.

(ii) Interim dates. If a permit establishes a schedule of

compliance which exceeds one year from the date of permit issuance, the

schedule shall set forth interim requirements and the date for their

achievement. The time between interim dates shall not exceed six

months.

(iii) Reporting. The permit shall be written to require that no

later than 14 days following each interim date and the final date of

compliance, the permittee shall notify the Director in writing of its

compliance or noncompliance with the interim or final requirements, or

submit progress reports if paragraph (a)(3)(ii) of this section is

applicable.

(b) Conditions applicable to all permits. In addition to permit

conditions which must be developed on a case-by-case basis in order to

meet applicable requirements of 40 CFR part 503, paragraphs (a)(1)

through (3) of this section, and permit conditions developed on a case-

by-case basis using best professional judgment to protect public health

and the environment from the adverse effects of toxic pollutants in

sewage sludge, all permits shall contain the following permit

conditions (or comparable conditions as provided for in the Memorandum

of Agreement):

* * * * *

(10) Monitoring and records. (i) The permittee shall monitor and

report monitoring results as specified elsewhere in this permit with a

frequency dependent on the nature and effect of its sludge use or

disposal practices. At a minimum, this shall be as required by 40 CFR

part 503.

* * * * *

(13) Reopener. If a standard for sewage sludge use or disposal

applicable to permittee's use or disposal methods is promulgated under

section 405(d) of the CWA before the expiration of this permit, and

that standard is more stringent than the sludge pollutant limits or

acceptable management practices authorized in this permit, or controls

a pollutant or practice not limited in this permit, this permit may be

promptly modified or revoked and reissued to conform to the standard

for sludge use or disposal promulgated under section 405(d) of the CWA.

(14) Duty to reapply. If the permittee wishes to continue an

activity regulated by this permit after the expiration date of this

permit, the permittee must apply for a new permit.

* * * * *

(d) Permit procedures. All State programs approved under this part

shall have the legal authority to implement, and be administered in

accordance with, each of following provisions, unless the Regional

Administrator determines that the State program includes comparable or

more stringent provisions.

(1) Application for a permit. (i) Any TWTDS whose sewage sludge use

or disposal method is covered by 40 CFR part 503 and covered under the

State program, except TWTDS covered by sewage sludge general permits,

shall complete, sign, and submit to the Director an application for a

permit within the time specified in paragraph (d)(1)(ii) of this

section.

(ii)(A) TWTDS with a currently effective NPDES permit must submit

the application information required by 40 CFR 122.21(q) when the next

application for NPDES permit renewal is due.

(B) Other existing TWTDS not addressed under paragraph

(d)(1)(ii)(A) of this section must submit the information listed in

paragraphs (d)(1)(ii)(B)(1) through (5) of this section, to the

Director within one year after publication of a standard applicable to

its sewage sludge use or disposal practice(s). The Director shall

determine when such TWTDS must submit a full permit application.

(1) Name, mailing address and location of the TWTDS;

(2) The operator's name, address, telephone number, ownership

status, and status as Federal, State, private, public or other entity;

(3) A description of the sewage sludge use or disposal practices.

Unless the sewage sludge meets the requirements of 40 CFR

122.21(q)(8)(iv), the description shall include the name and address of

any facility where sewage sludge is sent for treatment or disposal, and

the location of any land application sites;

(4) Annual amount of sewage sludge generated, treated, used or

disposed (dry weight basis); and

(5) The most recent data the TWTDS may have on the quality of the

sewage sludge.

(C) Notwithstanding paragraph (d)(1)(ii)(A) or (B) of this section,

the Director may require permit applications from any TWTDS at any time

if the Director determines that a permit is necessary to protect public

health and the environment from any potential adverse effects that may

occur from toxic pollutants in sewage sludge.

(D) Any TWTDS that commences operations after promulgation of an

applicable standard for sewage sludge use or disposal shall submit an

application to the Director at least 180 days prior to the date

proposed for commencing operations.

(iii) The Director shall not begin the processing of a permit until

the applicant has fully complied with the application requirements for

that permit.

* * * * *

(4) Fact sheets. A fact sheet shall be prepared for every draft

permit which the Director finds is the subject of widespread public

interest or raises major issues. The fact sheet shall briefly set forth

the principal facts and the significant factual, legal, methodological

and policy questions considered in preparing the draft permit. The

Director shall send this fact sheet to the applicant and, on request,

to any other person.

(5) Public notice of permit actions and public comment period. (i)

The Director shall give public notice that the following actions have

occurred:

(A) A draft permit has been prepared. At least 30 days shall be

allowed for public comment on the draft permit unless there has been a

previous public comment period such as during the permit application.

(B) A meeting or hearing has been scheduled.

(ii) Methods. Public notice of activities described in paragraph

(d)(5)(i) of this section shall be given in the area affected by these

activities by any method reasonably calculated to

[[Page 11280]]

give actual notice of the action in question to any person potentially

affected or requesting notice of the action, including publication of a

notice in a daily or weekly newspaper within the area affected by the

facility or activity, press releases, or any other forum or medium to

elicit public participation.

(iii) Contents--(A) All public notices. All public notices issued

under this part shall contain the following minimum information:

(1) Name and address of the office processing the permit action for

which notice is being given;

(2) Name and address of the permittee or permit applicant and, if

different, of the facility or activity regulated by the permit;

(3) A brief description of the activity described in the permit

application (including the inclusion of land application plan, if

appropriate);

(4) Name, address and telephone number of a person from whom

interested persons may obtain further information, including copies of

the draft permit, fact sheet, and the application;

(5) A brief description of the comment procedures required by

Sec. 501.15(d)(6) and the time and place of any meeting or hearing that

will be held, including a Statement of procedures to request a meeting

or hearing (unless a meeting or hearing has already been scheduled) and

other procedures by which the public may participate in the final

permit decision; and

(6) Any additional information considered necessary or proper.

(B) Public notices for meetings or hearings. In addition to the

general public notice described in paragraph (d)(5)(iii)(A) of this

section, the public notice of a meeting or hearing shall contain the

following information:

(1) Date, time and place of the meeting or hearing; and

(2) A brief description of the nature and purpose of the meeting or

hearing, including the applicable rules and procedures.

(6) Public comments and requests for public meetings or hearings.

During the public comment period, any interested person may submit

written comments on the draft permit and may request a public meeting

or hearing, if no meeting or hearing has already been scheduled. A

request for a public meeting or hearing shall be in writing and shall

State the nature of the issues proposed to be raised in the meeting or

hearing. All comments shall be considered in making the final decision

and shall be answered as provided in paragraph (d)(8) of this section.

(7) Public meetings or hearings. The Director shall hold a public

meeting or hearing whenever he or she finds, on the basis of requests,

a significant degree of public interest in a draft permit. The Director

may also hold a public meeting or hearing at his or her discretion,

(e.g., where such a hearing might clarify one or more issues involved

in the permit decision).

(8) Response to comments. At the time a final permit is issued, the

Director shall issue a response to comments. The response to comments

shall be available to the public, and shall:

(i) Specify which provisions, if any, of the draft permit have been

changed in the final permit decision, and the reasons for the change;

and

(ii) Briefly describe and respond to all significant comments on

the draft permit raised during the public comment period or during any

meeting or hearing.

* * * * *

20. Section 501.17 is amended by revising paragraphs (a)(3) and

(b)(1) to read as follows:

Sec. 501.17 Requirements for enforcement authority.

(a)* * *

(3)* * *

(i) Civil penalties shall be recoverable for the violation of any

permit condition; any applicable standard or limitation; any filing

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

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

Program Director. The State shall at a minimum, have the authority to

assess penalties of up to $5,000 a day for each violation.

(ii) Criminal fines shall be recoverable against any person who

willfully or negligently violates any applicable standards or

limitations; any permit condition; or any filing requirement. The State

shall at a minimum, have the authority to assess fines of up to $10,000

a day for each violation. States which provide the criminal remedies

based on ``criminal negligence,'' ``gross negligence'' or strict

liability satisfy the requirement of this paragraph (a)(3)(ii).

(iii) Criminal fines shall be recoverable against any person who

knowingly makes any false Statement, representation or certification in

any program form, or in any notice or report required by a permit or

State Program Director, or who knowingly renders inaccurate any

monitoring device or method required to be maintained by the State

Program Director. The State shall at a minimum, have the authority to

assess fines of up to $5,000 for each instance of violation.

(b)(1) The civil penalty or criminal fine shall be assessable for

each instance of violation and, if the violation is continuous, shall

be assessable up to the maximum amount for each day of violation.

* * * * *

21. Section 501.21 is revised to read as follows:

Sec. 501.21 Program reporting to EPA.

The State Program Director shall prepare annual reports as detailed

in this section and shall submit any reports required under this

section to the Regional Administrator. These reports shall serve as the

main vehicle for the State to report on the status of its sludge

management program, update its inventory of sewage sludge generators

and sludge disposal facilities, and provide information on incidents of

noncompliance. The State Program Director shall submit these reports to

the Regional Administrator according to a mutually agreed-upon

schedule. The reports specified in this section may be combined with

other reports to EPA (e.g., existing NPDES or RCRA reporting systems)

where appropriate and shall include the following:

(a) A summary of the incidents of noncompliance which occurred in

the previous year that includes:

(1) The non-complying facilities by name and reference number;

(2) The type of noncompliance, a brief description and date(s) of

the event;

(3) The date(s) and a brief description of the action(s) taken to

ensure timely and appropriate action to achieve compliance;

(4) Status of the incident(s) of noncompliance with the date of

resolution; and

(5) Any details which tend to explain or mitigate the incident(s)

of noncompliance.

(b) Information to update the inventory of all sewage sludge

generators and sewage sludge disposal facilities submitted with the

program plan or in previous annual reports, including:

(1) Name and location;

(2) NPDES, UIC, RCRA, Clean Air Act, and State permit number, if

any;

(3) Sludge management practice(s) used; and

(4) Sludge production volume.

22. Section 501.32 is amended by revising paragraph (a) to read as

follows:

Sec. 501.32 Procedures for revision of State programs.

(a) Any approved State program which requires revision to comply

with

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amendments to federal regulations governing sewage sludge use or

disposal (including revisions to this part) shall revise its program

within one year after promulgation of applicable regulations, unless

either the State must amend or enact a statute in order to make the

required revision, in which case such revision shall take place within

2 years; or a different schedule is established under the Memorandum of

Agreement.

* * * * *

[FR Doc. 97-5879 Filed 3-10-97; 8:45 am]

BILLING CODE 6560-50-P