Proposed National Pollutant Discharge Elimination System General Permit and Reporting Requirements for the Final Beneficial Reuse or Disposal of Municipal Sewage Sludge (ARG650000)

ENVIRONMENTAL PROTECTION AGENCY

[FRL-6147-6]

Proposed National Pollutant Discharge Elimination System General

Permit and Reporting Requirements for the Final Beneficial Reuse or

Disposal of Municipal Sewage Sludge (ARG650000)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Pursuant to section 405(f)(1) of the Clean Water Act (CWA) EPA

is proposing a General Permit to treatment works treating domestic

sewage (TWTDS), including publicly owned treatment works (POTWs), in

the State of Arkansas. Notice is for the draft general permit for the

land application, surface disposal, and disposal in a municipal solid

waste landfill (MSWLF) of sewage sludge generated during the treatment

of domestic sewage in a treatment works.

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SUMMARY: Section 305(f)(1) of the CWA provides all permits issued under

section 402 to a POTW or any other TWTDS must include requirements for

the use and disposal of sludge that implement the regulations

established pursuant to section 405(d) of the CWA (see 40 CFR Part 503

and Part 258).

The State of Arkansas was authorized to implement the National

Pollutant Discharge Elimination System (NPDES) program on November 1,

1986. It is not applying for authorization to implement the sewage

sludge program. The Arkansas Pollutant Discharge Elimination System

permits issued to wastewater treatment facilities will not provide

permit coverage for disposal of sewage sludge. EPA is proposing this

permit to assure sewage sludge is beneficially reused or disposed in

accordance with regulations to protect human health and the

environment. The 40 CFR Part 503 Standards consist of general

requirements, pollutant limits, management practices, and operational

standards, for the final use or disposal of sewage sludge generated

during the treatment of domestic sewage in a treatment works. Reuse or

disposal methods addressed in the general permit include sewage sludge

applied to the land, placed on a surface disposal site, and disposed in

a municipal solid waste landfill. This notice requests comments on the

general permit.

DATES: Comments on the proposed permit must be received on or before

October 26, 1998. See HEARINGS for information on hearing dates.

ADDRESSES: The public should send an original and two copies of their

comments addressing any aspect of this notice to Wilma Turner,

Administrative Team of the Water Quality Protection Division (6WQ-CA),

U.S. Environmental Protection Agency Region 6, 1445 Ross Ave. Suite

1200, Dallas, Texas 75202 (214) 665-7516.

The public record is located at EPA Region 6, and is available upon

written request. Requests for copies of the public record should be

addressed to Wilma Turner at the address above. A reasonable fee may be

charged for copying.

FOR FURTHER INFORMATION CONTACT: For further information on the

proposed draft general permit or a complete copy of the entire fact

sheet and general permit contact Wilma Turner, Administrative Team of

the Water Quality Protection Division (6WQ-CA), U.S. Environmental

Protection Agency Region 6, 1445 Ross Ave., Suite 1200, Dallas, Texas

75202 (214) 665-7516.

HEARINGS: A meeting and public hearing will be held on September 30,

1998, at the following location: La Quinta Inn, Otter Creek, 11701

Interstate 30, Little Rock, Arkansas 72209, Phone: 501-455-2300.

The public meeting will begin at 3:00 pm and end at 5:00 pm. The

public hearing will begin at 7:00 pm with registration beginning at

6:30 pm. The public meeting will provide information on the permit

conditions. The public can make formal statements and comments for the

public record at the public hearing.

SUPPLEMENTARY INFORMATION:

I. Framework of Permitting System

Regulated entities include:

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Category Examples of regulated entities

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Treatment Works Treating Domestic Publicly Owned Treatment Works

Sewage. (Municipalities).

Treatment Works Treating Domestic Sewage Sludge Treatment Devices

Sewage. (Including Blenders of Sewage

Sludge).

Treatment Works Treating Domestic Wastewater Treatment Devices.

Sewage.

Treatment Works Treating Domestic Federal Facilities Treating

Sewage. Domestic Sewage.

[[Page 45242]]

Treatment Works Treating Domestic Owners of Land Dedicated to the

Sewage. Disposal of Sewage Sludge.

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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 operation is regulated by this action, you should carefully

examine the applicability criteria found in 40 CFR Subpart 122.21(c)(2)

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.

Section 405(f) of the CWA requires that any permit issued under

section 402 of the Act to a POTW or any other TWTDS shall include the

requirements established pursuant to section 405(d) of the CWA, unless

such requirements have been included in a permit issued under the

appropriate provisions of subtitle C of the Solid Waste Disposal Act,

Part C of the Safe Drinking Water Act, the Marine Protection, Research,

and Sanctuaries Act of 1972, or the Clean Air Act.

II. Permitting

A. Permit Application Regulations

1. Regulations Requiring POTW NPDES/Sludge Permit Coverage

In accordance with 40 CFR Subpart 122.21(c)(2), all POTWs and any

other existing TWTDS are required to apply for a NPDES permit. POTWs

generating/treating/blending/disposing of sewage sludge are subject to

the application submission deadlines as defined in the February 19,

1993, Federal Register. 40 CFR Subpart 122.21(a) excludes persons

covered by general permits from requirements to submit individual

permit applications. Coverage under this general permit will eliminate

the operator's need to reapply for an individual sewage sludge permit.

2. Regulations Requiring All Other TWTDS Coverage

All other TWTDS must apply for a permit. A TWTDS is defined in 40

CFR Subparts 122.2 and 501.2 as ``a POTW or any other sewage sludge or

waste water treatment devices or systems, regardless of ownership

(including federal facilities), used in the storage, treatment,

recycling, and reclamation of municipal or domestic sewage, including

land dedicated for the disposal of sewage sludge. This includes

facilities that generate sewage sludge or otherwise effectively control

the quality or change the characteristics (e.g., blenders) of sewage

sludge or the manner in which it is disposed. In addition, all TWTDS

disposing of sewage sludge in a State-permitted Municipal Solid Waste

Landfill (MSWLF) must also apply for a permit. 40 CFR Part 503 requires

all sewage sludge disposed in a MSWLF meet the requirements in 40 CFR

Part 258 concerning the quality of the materials disposed.

3. Application of General Permit

This public notice specifies that official notification is required

for coverage under this general permit pursuant to 40 CFR Subpart

122.28(b)(2). Notifying EPA under a general permit is a mechanism which

can be used to establish an accounting of the number of permittees

covered by the general permit, the nature of operations at the facility

generating the sewage sludge, and the identity and location of sludge

disposal sites. This type of information is appropriate since the

sewage sludge is being monitored and tracked. This permit will apply to

all TWTDS (including POTWs) covered by permitting requirements under 40

CFR Part 503 and 40 CFR Part 258.

4. Individual Permit Application Requirements

The requirements for an individual permit application are found in

40 CFR Subpart 501.15(a)(2). The information is intended to develop the

site-specific conditions generally associated with individual permits.

Individual permit applications may be needed under several

circumstances. Examples include: a TWTDS authorized by a general permit

that covers final reuse or disposal of sewage sludge and requests to be

excluded from the coverage of the general permit by applying for an

individual permit, and EPA has determined the appropriateness of the

permit (see 40 CFR Subpart 122.28(b)(3)(i) for EPA issued general

permits); or the Director requires a TWTDS authorized by a general

permit to apply for an individual permit (see 40 CFR Subpart

122.28(b)(3)(iii) for EPA issued general permits).

III. Draft General Permit for Final Beneficial Reuse and Disposal

of Municipal Sewage Sludge

A. Today's Notice

Today's notice proposes a general permit for final beneficial reuse

and disposal of municipal sewage sludge in Arkansas. The following

portion provides notice for the draft general permit and accompanying

fact sheet for a general Sewage Sludge permit in Arkansas. This draft

general permit is intended to cover the final beneficial reuse and

disposal of municipal sewage sludge in accordance with the Standards

for the Use or Disposal of Sewage Sludge 40 CFR Part 503. The proposed

permit contains: The Federal guidelines to insure that the permittee's

practices do not pose a threat to human health and the environment due

to toxic pollutants and pathogens.

Effective Date of Requirements

This permit shall be effective the first day of the month following

issuance.

EPA Contacts

United States EPA, Region 6, Water Quality Protection Division

(6WQ-PO). First Interstate Bank Tower at Fountain Place, 1445 Ross

Avenue, 12th Floor, Suite 1200, Dallas, TX 75202.

Comment Period Closes

The comment period ends 60 days following the publication of this

general permit in the Federal Register.

B. Preamble for Draft General Permit

1. Coverage Under the Proposed General Permit

Types of Final Sludge Reuse or Disposal Practices Covered. Those

facilities generating sewage sludge or used in the storage, treatment,

recycling, and reclamation of municipal or domestic sewage, including

land dedicated for the disposal of sewage sludge. The permit being

proposed is intended to cover all TWTDS (including POTWs) in the State

of Arkansas with requirements for the final reuse or disposal of

municipal sewage sludge.

Designated Treatment Works Treating Domestic Sewage. In accordance

with 40 CFR Subpart 122.2 (definition of TWTDS), the Regional

Administrator may designate any facility a TWTDS if he or she becomes

aware of facilities which do not automatically fit the definition of

TWTDS, but finds that the

[[Page 45243]]

facility poses a potential for adverse effects on the public health and

the environment from poor sludge quality or poor sludge handling, use

or disposal practices, or where he or she finds that such designation

is necessary to ensure that such person is in compliance with 40 CFR

Part 503.

POTWs with Pending Application. Some existing TWTDS have submitted

applications in accordance with NPDES requirements and have remained

unpermitted due to the administrative work load and priorities. All of

these applicants will gain coverage under the sewage sludge program

through the issuance of this permit. Region 6 believes this benefits

those applicants without a permit. Any permittee desiring an individual

permit may petition the Director in accordance with 40 CFR Subpart

122.28(b)(3)(iii).

2. Permit Conditions

a. Description of draft permit conditions. The conditions of this

draft permit have been developed to be consistent with the self

implementing requirements of the 40 CFR Part 503 regulations. The draft

permit contains requirements for TWTDS (including POTWs) that land

apply municipal sewage sludge, surface dispose municipal sewage sludge,

and dispose of municipal sewage sludge in a municipal solid waste

landfill.

(1) For sewage sludge that is land applied, permit conditions

specifically address the following: (A) Requirements specific to bulk

sewage sludge for application to the land meeting class A or B pathogen

reduction and the cumulative loading rates in Table 2 of the permit, or

class B pathogen reduction and the pollutant concentrations in Table 3

of the permit. (B) Requirements specific to bulk sewage sludge meeting

pollutant concentrations in Table 3 of the permit and Class A pathogen

reduction requirements. (C) Requirements specific to sludge sold or

given away in a bag or other container for application to the land that

does not meet the pollutant concentrations in Table 3 of the permit.

(2) For sewage sludge that is surface disposed, permit conditions

specifically address the following: (A) Requirements specific to

surface disposal sites without a liner and leachate collection system.

(B) Requirements specific to surface disposal sites with a liner and

leachate collection system.

(3) For sewage sludge that is disposed in a municipal solid waste

landfill, 40 CFR Subpart 503.4 states that permit conditions require

sewage sludge disposed to meet the quality requirements of 40 CFR Part

258. Major POTWs (those POTWs with a design flow rate equal to or

greater than one million gallons per day, and POTWs that serve 10,000

people or more, or any POTW required to have an approved pretreatment

program under 40 CFR Subpart 403.8(a)) disposing of sewage sludge in a

municipal solid waste landfill are required to conduct a TCLP test

once/permit life to determine if the sludge is hazardous as well as an

annual paint filter test to assure that the sludge does not contain

free liquids. Compliance with these testing requirements will assure

that the sewage sludge meets the quality requirements.

b. Sludge Quality Limitations. Specific numerical permit conditions

for metals are dependent upon the quality of the sludge as well as the

method used by the TWTDS for the final reuse or disposal of municipal

sewage sludge.

IV. Economic Impact

EPA believes that this proposed general permit will be economically

beneficial to the regulated community. It provides an economic

alternative to the individual application process the facilities

covered by this permit would otherwise have to face. The requirements

are consistent with those already imposed by effective federal

regulations and State requirements.

An economic analysis was prepared when the 40 CFR Part 503

regulations were proposed and finalized. Region 6 believes that the

general permit conditions provide the same requirements as the self-

implementing requirements under the 40 CFR Part 503 rule. Also Region 6

believes that this general permit is the most economical permitting

option available to all TWTDS with NPDES application requirements.

V. Compliance With Other Federal Regulations

A. National Environmental Policy Act

CWA Section 511(c)(1) excludes this action from the National

Environmental Policy Act of 1969.

B. Endangered Species Act

The Endangered Species Act (ESA) of 1973 requires Federal Agencies

such as EPA to ensure, in consultation with the U.S. Fish and Wildlife

Service (Service) that any actions authorized, funded, or carried out

by the Agency (e.g., EPA issued sewage sludge permits requiring

compliance with the conditions in the Part 503 regulations) are not

likely to adversely affect the continued existence of any federally-

listed endangered or threatened species or adversely modify or destroy

critical habitat of such species (see 16 U.S.C. 1536(a)(2), 50 CFR Part

402 and 40 CFR Subpart 122.49(c)).

Accordingly, sewage sludge final reuse and disposal activities that

are likely to adversely affect species are not eligible for permit

coverage under this sewage sludge general permit.

To be eligible for coverage under the sewage sludge general permit,

applicants are required to review the list of species and their

locations and which are described in the instructions for completing

the application requirements under this permit. If an applicant

determines that none of the species identified are found in the county

in which the TWTDS, surface disposal site, land application site or

MSWLF is located, then there is no likelihood of an adverse effect and

they are eligible for permit coverage. Applicants must then certify

that their operation is not likely to adversely affect species and will

be granted sewage sludge general permit coverage 48 hours after the

date of the postmark on the envelope used to mail in the notification.

If species are found to be located in the same county as the TWTDS,

surface disposal site, land application site, or MSWLF then the

applicant next must determine whether the species are in proximity to

the sites. A species is in proximity if it is located in the area of

the site where sewage sludge will be generated, treated, reused or

final disposed. If an applicant determines there are no species in

proximity to the potential sites, then there is no likelihood of

adversely affecting the species and the applicant is eligible for

permit coverage.

If species are in proximity to the sites, as long as they have been

considered as part of a previous ESA authorization of the applicant's

activity, and the environmental baseline established in that

authorization is unchanged, the applicant may be covered under the

permit. For example, an applicant's activity may have been authorized

as part of a section 7 consultation under ESA, covered under a section

10 permit, or have received a clearance letter. The environmental

baseline generally includes the past and present impacts of all

federal, state and private actions that were contemporaneous to an ESA

authorization. Therefore, if a permit applicant has received previous

authorization and nothing has changed or been added to the

environmental baseline established in the previous authorization, then

coverage under this permit will be provided.

[[Page 45244]]

In the absence of such previous authorization, if species are in

proximity to the sites, then the applicant must determine whether there

is any likely adverse effect upon the species. This is done by the

applicant conducting a further examination or investigation which

includes contacting the Services for a determination on potential

adverse effects of endangered species. If the applicant determines that

there likely is, or will likely be an adverse effect, then the

applicant is not eligible for general permit coverage.

All TWTDS applying for coverage under this permit must provide in

the notification to EPA the following information: (1) a determination

as to whether there are any species in proximity to the sites, and (2)

a certification that their sewage sludge treatment, reuse, or disposal

are not likely to adversely effect species or are otherwise eligible

for coverage due to a previous authorization under the ESA. Coverage is

contingent upon the applicant's providing truthful information

concerning certification and abiding by any conditions imposed by the

permit.

TWTDS who are not able to determine that there will be no likely

adverse affect to species or habitats and cannot sign the certification

to gain coverage under this sewage sludge general permit, must apply to

EPA for an individual sludge only permit. As appropriate, EPA will

conduct ESA Sec. 7 consultation when issuing such individual permits.

Regardless of the above conditions, EPA may require that a

permittee apply for an individual sewage sludge permit on the basis of

possible adverse effects on species or critical habitats. Where there

are concerns that coverage for a particular discharger is not

sufficiently protective of listed species, the Service (as well as any

other interested parties) may petition EPA to require that the

discharger obtain an individual NPDES permit and conduct an individual

section 7 consultation as appropriate.

In addition, the Service may petition EPA to require that a

permittee obtain an individual sewage sludge permit. The permittee is

also required to make the record keeping information required by the 40

CFR Part 503 regulations and the permit available upon request to the

U.S. Fisheries and Wildlife Service Regional Director, or his/her

authorized representative.

These mechanisms allow for the broadest and most efficient coverage

for the permittee while still providing for the most efficient

protection of endangered species. It significantly reduces the number

of TWTDS that must be considered individually and therefore allows the

Agency and the Services to focus their resources on those discharges

that are indeed likely to adversely affect water-dependent listed

species. Straightforward mechanisms such as these allow applicants with

expedient permit coverage, and eliminates ``permit limbo'' for the

greatest number of permitted discharges. At the same time it is more

protective of endangered species because it allows both agencies to

focus on the real problems, and thus, provide endangered species

protection in a more expeditious manner. Prior to the publication of

the public notice of this draft permit in the Federal Register, the

Service concurred that the draft permit would not adversely affect

listed species. No comments were submitted.

C. National Historic Preservation Act

The National Historic Preservation Act (NHPA) prohibits Federal

actions that would affect a property that either is listed on, or is

eligible for listing, on the National Historic Register. EPA therefore

cannot issue permits to treatment works treating domestic sewage

(including publicly owned treatment works (POTWs)) affecting historic

properties unless measures will be taken such as under a written

agreement between the applicant and the State Historic Preservation

Officer (SHPO) outlining all measures to be undertaken by the applicant

to mitigate or prevent adverse effects to the historic property.

Therefore, under today's permit land applying, surface disposing, or

disposing of sewage sludge in a municipal solid waste landfill may be

covered only if the action will not affect a historic property that is

listed or is eligible to be listed in the National Historic Register,

or the operator has obtained and is in compliance with a written

agreement signed by the State Historic Preservation Officer (SHPO) that

outlines measures to be taken to mitigate or prevent adverse effects to

the historic site. Prior to the publication of the public notice of

this draft permit in the Federal Register, the Arkansas State Historic

Preservation Program determined it had no objections to the general

permit based on the NHPA. No comments were submitted.

D. 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 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 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; create a serious

inconsistency or otherwise interfere with an action taken or planned by

another agency; materially alter the budgetary impact of entitlements,

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

recipients thereof; or 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 general

permit is not a ``significant regulatory action'' under the terms of

Executive Order 12866.

E. Paperwork Reduction Act

The information collection required by this permit has been

approved by OMB under the provisions of the Paperwork Reduction Act, 44

U.S.C. 3501 et seq., in submission made for the NPDES permit program

and assigned OMB control number 2040-0004 for the discharge monitoring

reports. Permit application and Notice of Intent information has been

assigned the OMB control number 2040-0086.

F. Regulatory Flexibility Act

Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., a

Federal agency must prepare an initial regulatory flexibility analysis

``for any proposed rule'' for which the agency ``is required by section

553 of [the Administrative Procedure Act (APA)], or any other law, to

publish general notice of proposed rulemaking.'' The RFA exempts from

this requirement any rule that the issuing agency certifies ``will not,

if promulgated, have a significant economic impact on a substantial

number of small entities.''

EPA did not prepare a regulatory flexibility analysis (IRFA) for

the proposed permit. EPA views issuance of a ``sewage sludge only''

general permit to not be subject to rulemaking requirements, including

the requirement for a general notice of proposed rulemaking, under APA

section 553 or any other law, and is thus not subject to the RFA

requirement to prepare an IRFA. The EPA concluded that the permit, if

issued as drafted, would not have a significant impact on a substantial

number of small entities. NPDES general permits are not ``rules'' under

the APA and thus not subject to the APA requirement to publish a notice

of proposed rulemaking. NPDES general

[[Page 45245]]

permits are also not subject to such a requirement under the Clean

Water Act (CWA). While EPA publishes a notice to solicit public comment

on draft general permits, it does so pursuant to the CWA section 402(a)

requirement to provide ``an opportunity for a hearing.''

G. Unfunded Mandates Reform Act

Section 201 of the Unfunded Mandates Reform Act (UMRA), P.L. 104-4,

generally requires Federal agencies to assess the effects of their

``regulatory actions'' on State, local, and tribal governments and the

private sector. UMRA uses the term ``regulatory actions'' to refer to

regulations. (See, e.g., UMRA section 201, ``Each agency shall . . .

assess the effects of Federal regulatory actions . . . (other than to

the extent that such regulations incorporate requirements specifically

set forth in law)'' (emphasis added)). UMRA section 102 defines

``regulation'' and ``rule'' by reference to section 658 of Title 2 of

the U.S. Code, which in turn defines ``regulation'' and ``rule'' by

reference to section 601(2) of the RFA. That section of the RFA defines

``rule'' as ``any rule for which the agency publishes a notice of

proposed rulemaking pursuant to section 553(b) of the Administrative

Procedure Act (APA), or any other law. . . .''

NPDES general permits are not ``rules'' under the APA and thus not

subject to the APA requirement to publish a notice of proposed

rulemaking. NPDES general permits are also not subject to such a

requirement under the Clean Water Act (CWA). While EPA publishes a

notice to solicit public comment on draft general permits, it does so

pursuant to the CWA section 402(a) requirement to provide ``an

opportunity for a hearing.'' Thus, NPDES general permits are not

``rules'' for UMRA purposes but are treated with rule-like procedures.

Signed this 17th day of August, 1998.

Oscar Ramirez, Jr.,

Deputy Director, Water Quality Protection Division (6WQ), EPA Region 6.

[FR Doc. 98-22652 Filed 8-24-98; 8:45 am]

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