[Federal Register Volume 69, Number 72 (Wednesday, April 14, 2004)]
[Notices]
[Pages 19848-19850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8448]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7647-7]


Water Pollution Control; State Program Requirements; Approval of 
Program Modification To Administer the Sewage Sludge (Biosolids) 
Management Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice; approval of application.

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SUMMARY: On March 31, 2004, pursuant to section 402(b) of the Clean 
Water Act (CWA), the Regional Administrator for EPA, Region 9, approved 
the State of Arizona's application to administer a state sewage sludge 
(biosolids) management program where it has jurisdiction.

FOR FURTHER INFORMATION CONTACT: Matthew Mitchell, (415) 972-3508, WTR-
5, EPA, Region 9, 75 Hawthorne St., San Francisco, CA 94707, or John 
Calkins, (602) 771-4651, Water Quality Compliance Assurance Unit, 
Arizona Department of Environmental Quality, 1110 W. Washington, 
Phoenix, AZ 85007. The State's program submission is available 
electronically at the following Internet address: http://www.adeq.state.az.us/environ/water/permits/bio.html#to.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' or 
``our'' means EPA.

Table of Contents

I. Background
II. Was notice provided seeking public comments on Arizona's program 
submittal?
III. Was a public hearing held?
IV. Did EPA receive any public comments?
V. Does EPA's approval affect Indian Country (18 U.S.C. 1151) in 
Arizona?
VI. Conclusion
VII. Administrative Requirements
    A. Endangered Species Act

[[Page 19849]]

    B. National Historic Preservation Act
    C. Other Provisions

I. Background

    Section 405 of the Clean Water Act (CWA), 33 U.S.C. 1345, created 
the sewage sludge management program, requiring EPA to set standards 
for the use and disposal of sewage sludge and requiring EPA to include 
sewage sludge conditions in the National Pollutant Discharge 
Elimination System (NPDES) permits which it issues to treatment works 
treating domestic sewage. The rules developed under section 405(d) are 
also self-implementing, and the standards are enforceable whether or 
not a permit has been issued. Pursuant to regulations promulgated in 
accordance with
    Section 405(f) of the CWA, a state may apply to EPA for authority 
to administer the sewage sludge program within its jurisdiction. EPA is 
required to approve each such submitted state program application 
unless EPA determines that the program does not meet the requirements 
of those regulations, set forth at 40 CFR part 501.
    On June 11, 2002, Arizona submitted an application to EPA for 
approval of a state-administered NPDES permit program pursuant to CWA 
section 402(b) of the CWA. The Arizona NPDES program (known as AZPDES) 
was approved by EPA on December 5, 2002. Approval of Arizona's 
application for its sewage sludge program is a program modification 
since ADEQ intends to administer its sewage sludge program in 
conjunction with the AZPDES program.
    EPA received the sewage sludge program submittal from Arizona on 
November 29, 2002. Arizona's application for the sewage 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, a Program Description, and a 
Memorandum of Agreement (MOA) to be executed by the Regional 
Administrator of EPA, Region 9 and the Director of ADEQ. The State 
submitted a modification of its Attorney General's Statement, which EPA 
received on October 10, 2003.
    Sewage sludge, also known as ``biosolids,'' is the solid separated 
from liquids during treatment at a domestic or municipal wastewater 
treatment plant and treated to stabilize and reduce pathogens. In 1993, 
EPA adopted standards for management of sewage sludge generated during 
the process of treating domestic sewage. 40 CFR part 503. The part 503 
regulations establish standards under which sewage sludge may be 
applied to land as a soil amendment, disposed in a surface disposal 
site, or incinerated. The regulations also allow for disposal in a 
municipal solid waste landfill that meets the requirements of 40 CFR 
part 258. The standards in part 503, designed to protect public health 
and the environment, include pollutant limits, pathogen reduction 
requirements, vector attraction reduction requirements, and management 
practices specific to the use or disposal option selected.
    The Arizona biosolids management program has standards for land 
application, surface disposal, and placement of sewage sludge in a 
municipal landfill. It imposes requirements on wastewater treatment 
plants, biosolids land appliers, and surface disposal site operators. 
It also provides for the issuance of permits under certain conditions, 
enforcing the standards as necessary, and providing guidance and 
technical assistance to members of the regulated community. The program 
also includes a state-specific feature requiring a land applier to 
register an application site with ADEQ before biosolids are applied to 
the site. State rules prohibit incineration of sewage sludge.

II. Was Notice Provided Seeking Public Comments on Arizona's Program 
Submittal?

    Arizona's application was described in the November 21, 2003, 
Federal Register (68 FR 65663), in which EPA requested public comments 
for a period of 45 days. Further notice was provided by way of 
publication in the following newspapers on December 5, 2003: The 
Arizona Republic; The Tucson Citizen, and the Arizona Daily Star. EPA 
also provided public notice to the following interested persons and 
parties: permitted facilities, Indian tribes, other Federal and state 
agencies, and environmental groups within Arizona. Copies of ADEQ's 
application package were available for public review at the offices of 
EPA, Region 9 and ADEQ.

III. Was a Public Hearing Held?

    A public hearing was not held. The above notice explained that a 
hearing had not been scheduled and how a hearing could be requested. 
EPA holds a public hearing whenever the Regional Administrator finds, 
on the basis of requests, a significant degree of public interest. No 
request for a hearing was received during the public comment period and 
therefore, no hearing was held.

IV. Did EPA Receive Any Public Comments?

    Pursuant to the public notice, we accepted written comments from 
the public postmarked on or before January 5, 2004. During the comment 
period, we received one comment. The commenter fully supports the 
modification of the state's AZPDES program to include the 
administration and enforcement of a biosolids management program. This 
comment is addressed in EPA's Response to Comment Document, dated March 
26, 2004.

V. Does EPA's Approval Affect Indian Country (18 U.S.C. 1151) in 
Arizona?

    ADEQ did not seek approval to administer and enforce the state 
biosolids management program for activities occurring in Indian 
Country. Our approval does not authorize ADEQ to carry out its 
biosolids program in Indian Country. Therefore, our approval of the 
state's biosolids management program will have no effect in Indian 
Country where EPA continues to implement and administer the NPDES 
program.

VI. Conclusion

    The Arizona Department of Environmental Quality has demonstrated 
that it adequately meets the requirements for approval of a state 
administered biosolids management program (specifically, the 
application of biosolids to land, surface disposal of biosolids, and 
the landfilling of biosolids) as defined in the Clean Water Act and 40 
CFR parts 501 and 503.

VII. Administrative Requirements

A. Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C. 
1536(a)(2), requires that federal agencies insure, in consultation with 
the United States Fish & Wildlife Service (FWS), that actions they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of Federally-listed threatened or endangered 
species (listed species) or result in the destruction or adverse 
modification of critical habitat designated for such listed species.
    EPA, Region 9 initiated informal ESA section 7 consultation with 
the FWS regarding Arizona's request for approval of its biosolids 
management program. On November 12, 2003, the FWS concurred with EPA's 
Biological Evaluation, concluding that EPA's approval of Arizona's 
biosolids management program may affect, but is not likely to adversely 
affect, endangered species or their designated critical habitat. 
Issuance of the FWS

[[Page 19850]]

concurrence concluded the consultation process required by ESA section 
7(a)(2) and reflects the FWS's agreement with EPA that the approval of 
the State program meets the substantive requirements of the ESA.

B. National Historic Preservation Act

    Section 106 of the National Historic Preservation Act (NHPA), 16 
U.S.C. 470(f), requires Federal agencies to take into account the 
effects of their undertakings on historic properties and to provide the 
Advisory Council on Historic Preservation (ACHP) an opportunity to 
comment on such undertakings. Under the ACHP's regulations (36 CFR part 
800), agencies consult with the appropriate State Historic Preservation 
Officer (SHPO) on federal undertakings that have the potential to 
affect historic properties listed or eligible for listing in the 
National Register of Historic Places.
    On January 16, 2004, EPA provided the Arizona State Parks Board 
(which includes the SHPO) with EPA's determination that approval of 
Arizona's application would have no effect on historic properties in 
Arizona. On March 12, 2004, the Arizona State Parks Board concurred 
with EPA's determination.

C. Other Provisions

    Based on General Counsel Opinion 78-7 (April 18, 1978), EPA has 
long considered a determination to approve or deny a State Clean Water 
Act (CWA) 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 product of an 
``adjudication.'' For this reason, the statutes and Executive Orders 
that apply to rulemaking action are not applicable here.

List of Subjects in 40 CFR Parts 501 and 503

    Environmental protection, Administrative practice and procedures, 
Sewage sludge use and disposal, Water pollution control, Waste 
treatment and disposal, Indian lands, Intergovernmental relations.

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

    Dated: March 31, 2004.
Laura Yoshii,
Acting Regional Administrator, Region IX.
[FR Doc. 04-8448 Filed 4-13-04; 8:45 am]
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