[Federal Register Volume 65, Number 194 (Thursday, October 5, 2000)]
[Proposed Rules]
[Pages 59385-59388]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-25600]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 123
[FRL-6874-1]
Water Pollution Control; Program Modification Application by
South Dakota To Administer the Sludge Management (Biosolids) Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; notice of application and public comment period.
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SUMMARY: The State of South Dakota has submitted an application to EPA
to revise the existing South Dakota Pollutant Discharge Elimination
System (SDPDES) program to include administration and enforcement of
the sludge management (biosolids) program. According to the State's
proposal dated March 23, 1998, this program would be administered by
the South Dakota Department of Environment and Natural Resources
(SDDENR).
The application from South Dakota is complete and is available for
inspection and copying. EPA has reviewed the State's request for
delegation for completeness and adequacy and has found that the
proposal meets Federal equivalency regulations.
DATES: Comments on this proposed rule received on or before November
20, 2000 will be considered before issuing a final rule. Comments
postmarked after this date may not be considered.
ADDRESSES: You can view and copy South Dakota's application for
modification from 8:00 a.m. until 5:00 p.m. Monday through Friday,
excluding holidays, at the South Dakota Department of Environment and
Natural Resources; Joe Foss Building, Pierre, South Dakota or at the
EPA Regional
[[Page 59386]]
Office at 999 18th Street, Denver, Colorado. Requests for copies should
be addressed to Kelli Buscher, South Dakota Department of Environment
and Natural Resources at the above address or at telephone number 605-
773-3351. (There will be a $15 charge for copies.) Electronic comments
are encouraged and should be submitted to [email protected] or send
written comments to Robert Brobst, U.S. EPA/ 8P-WP, 999 18th Street,
Suite 500, Denver, Colorado 80202-2466.
FOR FURTHER INFORMATION CONTACT: Robert Brobst at the above address by
phone at (303) 312-6129, or by e-mail at [email protected].
SUPPLEMENTARY INFORMATION: Section 405 of the Clean Water Act (CWA), 33
U.S.C. 1345, created the sludge management program, allowing EPA to
issue permits for the disposal of sewage sludge under conditions
required by the CWA. Section 405(c) of the CWA provides that a state
may submit an application to EPA for administering its own program for
issuing sewage sludge permits within its jurisdiction. EPA is required
to approve each such submitted state program unless EPA determines that
the program does not meet the requirements of sections 304(i) and/or
402(b) of the CWA or the EPA regulations implementing those sections.
South Dakota's application for sludge management program approval
contains a letter from the Governor requesting program approval, an
Attorney General's Statement, copies of pertinent State statutes and
regulations, amendments to the SDPDES Program Description, and
amendments to the SDDENR/EPA Memorandum of Agreement (MOA) executed by
the Regional Administrator, Region 8, EPA, and the Secretary,
Department of Environment and Natural Resources.
The State of South Dakota has existing environmental self-
evaluation laws and rules. These provide evidentiary privilege and
limited immunity for certain disclosures made in an environmental self-
evaluation. SDCL section 1-40-35 provides that no privilege or immunity
exists for information required to be collected, developed, maintained,
or reported to the department according to State law, rule, regulation,
or permit.
South Dakota has incorporated Federal sludge management regulations
by reference into its State rules. These rules require recordkeeping
and reporting for certain technical monitoring and assessment,
management practices, and certain certifications of compliance. Because
these requirements and any requirement in sludge permits would be
excluded from the self-evaluation privilege, EPA believes that South
Dakota has the authority necessary to administer the sludge management
program to assure protection of public health and the environment, and
invites comment on this issue.
EPA discussed the SDDENR program application with the South Dakota
Office of the U.S. Fish and Wildlife Service and received their
concurrence dated June 29, 2000 stating that the proposed program
authorization was unlikely to jeopardize the continued existence of any
endangered species or threatened species, or result in the destruction
or adverse modification of habitat of such species.
By Letter dated October 20, 1999, EPA discussed the program
application with the South Dakota State Historic Preservation Officer
and received concurrence by letter dated November 5, 1999. The State
Historic Preservation Officer determined that no historic properties
would be affected by the addition of the biosolids program.
What are biosolids? Biosolids are, in effect, a slow release
nitrogen fertilizer with low concentrations of other plant nutrients.
In addition to significant amounts of nitrogen, biosolids also contain
phosphorus, potassium, and essential micronutrients such as zinc and
iron. Many western soils are deficient in micronutrients. Biosolids are
rich in organic matter that can improve soil quality by improving water
holding capacity, soil structure and air and water transport. Proper
use of biosolids can ultimately decrease topsoil erosion. When applied
at agronomic rates (the rates at which plants require nitrogen during a
defined growth period), biosolids provide an economic benefit in
addition to their environmental benefits.
How do biosolids differ from sewage sludge? Most simply, biosolids
is the new name for what had previously been referred to as sewage
sludge. Biosolids are primarily organic treated solids at wastewater
treatment plants--with the emphasis on the word treated--that are
suitable for recycling as a soil amendment. Sewage sludge now refers to
untreated primary and secondary organic solids. This differentiates
biosolids that have received stabilization treatment at a municipal
wastewater treatment plant from other types of existing sludge (such as
oil and gas field wastes) that cannot be beneficially recycled as soil
amendments.
What are the traditional practices in this region? Until 25 years
ago, the traditional practice in this Region was to landfill or
incinerate what was then called sewage sludge. During the past quarter
century the practice changed to recycling biosolids as soil amendments.
States in Region 8 recycle 85% of the biosolids generated in the six
state Region.
What are the Federal requirements? The EPA in 1993 set forth
requirements for management of all biosolids generated during the
process of treating municipal wastewater, commonly called the 503 rule.
The 503 rule encourages the beneficial reuse of biosolids, and
establishes strict standards under which wastewater residuals can be
beneficially recycled as soil amendments. The EPA believes that
biosolids are an important resource that can and should be safely
recycled. The 503 rule is designed to protect public health and the
environment. Most of the requirements were based on the results of
extensive multimedia risk assessment and on more that 25 years of
independent research. The 503 rule establishes standards for pathogen
destruction and for levels of metals that can be present in biosolids.
It also governs the agricultural practices, site restrictions, and crop
harvesting restrictions and the stability of the materials by reducing
the attraction of disease vectors (such as flies).
Indian Country
South Dakota is not authorized to carry out its Biosolids program
in Indian Country, as defined in 18 U.S.C. 1151. This includes, but is
not limited to: Lands within the exterior boundaries of the following
Indian reservations located within the State of South Dakota:
A. Cheyenne River Indian Reservation,
B. Crow Creek Indian Reservation,
C. Flandreau Indian Reservation,
D. Lower Brule Indian Reservation,
E. Pine Ridge Indian Reservation,
F. Rosebud Indian Reservation,
G. Standing Rock Indian Reservation, and
H. Yankton Indian Reservation.
EPA held a public hearing on December 2, 1999, in Badlands National
Park, South Dakota, and accepted public comments on the question of the
location and the extent of Indian Country within the State of South
Dakota. In a forthcoming Federal Register document, EPA will respond to
the comments that have been received and more specifically identify
Indian Country areas in the State of South Dakota.
[[Page 59387]]
Public Notice Procedures
Copies of all submitted statements and documents shall become a
part of the record submitted to EPA. All comments or objections
presented in writing to EPA Region 8 and postmarked within 45 days of
this document will be considered by EPA before it takes final action on
South Dakota's request for program modification approval. All written
comments and questions regarding the sludge management program should
be addressed to Robert Brobst at the above address. The public is also
encouraged to notify anyone who may be interested in this matter.
EPA's Decision
After the close of the public comment period, EPA will decide
whether to approve or disapprove South Dakota's sludge management
program. EPA will consider and respond to all significant comments
received before taking final action South Dakota's request for Sludge
program approval. The decision will be based on the requirements of
sections 405, 402 and 304(i) of the CWA and EPA regulations promulgated
thereunder.
If the South Dakota program modifications are approved, EPA will so
notify the State and anyone who has submitted significant comments.
Notice will be published in the Federal Register and, as of the date of
program approval, EPA will suspend issuance of federal NPDES sludge
management permits in South Dakota (except, as discussed above, for
those dischargers in ``Indian Country''). The State's program will
operate in lieu of the EPA-administered program. However, EPA will
retain the right, among other things, to object to SDNPDES permits
proposed by South Dakota and to take enforcement actions for
violations, as allowed by the CWA.
If EPA disapproves South Dakota's sludge management program, EPA
will notify the State and anyone who submitted significant comments of
the reasons for disapproval and of any revisions or modifications to
the State program that are necessary to obtain approval.
Regulatory Flexibility Act
Based on General Counsel Opinion 78-7 (April 18, 1978), EPA has
long considered a determination to approve or deny a State NPDES
program submission to constitute an adjudication because an
``approval,'' within the meaning of the Administrative Procedure Act
(APA), constitutes a ``licence,'' which, in turn, is the project of an
``adjudication.'' For this reason, the statutes and Executive Orders
that apply to rulemaking action are not applicable here. Among these
are provisions of the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et
seq. Under the RFA, whenever a Federal agency proposes or promulgates a
rule under section 553 of the APA, after being required by that section
or any other law to publish a general notice of proposed rulemaking,
the Agency must prepare a regulatory flexibility analysis for the rule,
unless the Agency certifies that the rule will not have a significant
economic impact on a substantial number of small entities. If the
Agency does not certify the rule, the regulatory flexibility analysis
must describe an assess the impact of a rule on small entities affected
by the rule.
Even if the NPDES program approval were a rule subject to the FRA,
the Agency would certify that approval of the State proposed SDPDES
program would not have a significant economic impact on a substantial
number of small entities. EPA's action to approve an NPDES program
merely recognizes that the necessary elements of an NPDES program have
already been enacted as a matter of State law; it would, therefore,
impose no additional obligation upon those subject to the State's
program. Accordingly, the Regional Administrator would certify that
this program, even if a rule, would not have significant economic
impact on a substantial number of small entities.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year.
Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA generally requires WPA 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 lease 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 decision includes no Federal mandates for State, local or
tribal governments or the private sector. The Act excludes from the
definition of a ``Federal mandate'' duties that arise from
participation in a voluntary Federal program, except in certain cases
where a ``Federal intergovernmental mandate'' affects an annual Federal
entitlement program of $500 million or more which are not applicable
here. South Dakota's request for approval of its budget management
program is voluntary and imposes no Federal mandate within the meaning
of the Act. Rather, by having its sludge management program approved,
the State will gain the authority to implement the program within its
jurisdiction, in lieu of EPA, thereby eliminating duplicative State and
Federal requirements. If a State chooses not to seek authorization for
administration of a sludge management program, regulation is left to
EPA.
EPA's approval of state programs generally may reduce compliance
costs for the private sector, since the State, by virtue of the
approval, may now administer the program in lieu of EPA and exercise
primary enforcement. Hence, owners and operators of sludge management
facilities or businesses generally no longer face dual Federal and
State compliance requirements, thereby reducing overall compliance
costs. Thus, today's decision is not subject to the requirements of
sections 202 and 205 of the UMRA.
The Agency recognizes that small governments may own and/or operate
sludge management facilities that will become subject to the
requirements of an approved State sludge management program. However,
small governments that own and/or operate sludge management facilities
are already subject to the requirements in 40 CFR
[[Page 59388]]
parts 123 and 503 and are not subject to any additional significant or
unique requirements by virtue of this program approval. Once EPA
authorizes a State to administer its own sludge management program and
any revisions to that program, these same small governments will be
able to own and operate their sludge management facilities or
businesses under the approved State program, in lieu of the Federal
program. Therefore, EPA has determined that this document contains no
regulatory requirements that might significantly or uniquely affect
small governments.
Dated: September 26, 2000.
William P. Yellowtail,
Regional Administrator, Region 8.
[FR Doc. 00-25600 Filed 10-4-00; 8:45 am]
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