[Federal Register Volume 69, Number 60 (Monday, March 29, 2004)]
[Proposed Rules]
[Pages 16191-16193]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-6928]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 123
[FRL-7641-1]
State Program Requirements; Revision of the Approved National
Pollutant Discharge Elimination System (NPDES) Program in North Dakota
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; notice of application and public comment period.
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SUMMARY: The State of North Dakota has submitted an application to EPA
to revise the existing North Dakota Pollutant Discharge Elimination
System (NDPDES) program to include administration and enforcement of
the Industrial Pretreatment Program. According to the State's
application dated November 12, 2003, this program would be administered
by the North Dakota Department of Health (NDDOH), Division of Water
Quality Department.
The application from North Dakota is complete and is available for
viewing and copying. The EPA has reviewed the State's request for
delegation for completeness and adequacy and has found that the
application meets federal equivalency regulations.
DATES: Written comments on this proposed rule received on or before
April 28, 2004, will be considered before issuing an approved final
rule. Comments postmarked after this date will not be considered.
ADDRESSES: Anyone can view and copy North Dakota's application for
revision from 8 a.m. until 5 p.m., Monday through Friday, excluding
holidays, at the North Dakota Department of Health, 1200 Missouri
Avenue, Bismarck, North Dakota or at the EPA Regional Offices located
at 999 18th Street, Suite 300, Denver, Colorado. Requests for copies
should be addressed to Gary Bracht, North Dakota Department of Health
at the above address or at telephone number (701) 328-5210. (There may
be a charge for copies.) Electronic comments are encouraged and should
be submitted to the e-mail address of [email protected] or send
written comments to Jennifer Harris, U.S. EPA Region 8, 8P-W, 999 18th
Street, Suite 300, Denver, Colorado 80202-2466.
FOR FURTHER INFORMATION CONTACT: Jennifer Harris, Water Program (8P-W),
U.S. EPA, Region 8, 999 18th Street, Suite 300, Denver, Colorado 80202-
2466; telephone number (303) 312-6254, email address
[email protected].
I. Background: Under section 402 of the Clean Water Act (CWA), 33
U.S.C. 1342, the EPA may issue permits allowing discharges of
pollutants from point sources into waters of the United States, subject
to various requirements of the CWA. These permits are known as National
Pollutant Discharge Elimination System (NPDES) permits. Section 402(b)
of the CWA, 33 U.S.C. 1342(b), allows states to apply to the EPA for
authorization to administer their own NPDES permit programs. In 1975,
the EPA approved North Dakota's application to administer the North
Dakota Pollutant Discharge Elimination System (NDPDES) program.
Section 402(b) of the CWA, 33 U.S.C. 1345(c), authorizes any state
desiring to administer its own industrial pretreatment program to do so
in accordance with section 402 (b)(8) and (9) of the CWA, following the
procedures and requirements set out in 40 CFR 403.10. On November 12,
2003, North Dakota submitted a letter to the EPA requesting that the
State's original NPDES authorization be amended to include an
Industrial Pretreatment program described in an accompanying
application dated November 12, 2003.
II. Public Comments: A public comment period will be conducted for
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30 days and noticed in a Federal Register notice. Commenters may
request a public hearing. A hearing will be held if there is
significant public interest based on requests received. A request
should be made in writing within the comment period and sent to
Jennifer Harris, Water Program (8P-W), U.S. EPA, Region 8, 999 18th
Street, Suite 300, Denver, Colorado 80202-2466; telephone number (303)
312-6254, email address [email protected]. A copy of the notice
will be published in the following newspapers in North Dakota: Bismarck
Tribune, Bismarck, the Herald in Grand Forks, and the Fargo Forum in
Fargo, and in individual mailings to persons known to be interested in
such matters.
III. Threatened and Endangered Species: On February 25, 2004,
following discussions with representatives of the EPA, the Field
Supervisor of the North Dakota Field Office of the United States Fish
and Wildlife Service concurred with the EPA's determination that
approving North Dakota's Industrial Pretreatment program application
was unlikely either to jeopardize the continued existence of any
species listed as threatened or endangered under the Endangered Species
Act, 16 U.S.C. 1531 et seq., or to result in the adverse modification
of designated critical habitat for any such species.
IV. Historic Preservation: On February 3, 2004, the North Dakota
State Historical Society provided the EPA with a written determination
that the addition of the Industrial Pretreatement program to the NDPDES
program would have no effect on historic properties in North Dakota.
V. Indian Country: North Dakota is not authorized to carry out its
Industrial Pretreatment program in Indian country, as defined in 18
U.S.C. 1151. This includes, but is not limited to:
1. Lands within the exterior boundaries of the following Indian
reservations located within the State of North Dakota:
A. Fort Totten Indian Reservation,
B. Standing Rock Indian Reservation,
C. Fort Berthold Indian Reservation, and
D. Turtle Mountain Indian Reservation,
2. Any land held in trust by the U.S. for an Indian Tribe, and
3. Any other land which is ``Indian country'' within the meaning of
18 U.S.C. 1151.
VI. Administrative Requirements: The EPA has long considered a
determination to approve or deny a State NPDES program submission to
constitute an adjudication, not a rulemaking. This is because an
``approval,'' as that term is used in the Administrative Procedure Act,
5 U.S.C. 551 et seq., constitutes a ``license,'' which, in turn, is the
product of an ``adjudication.'' Therefore, the requirements for rules
that are established by the statutes and Executive Orders mentioned
below would not apply to this action. Even if this action were
considered a rulemaking, the statutes and Executive Orders discussed
below would not apply for the following reasons.
A. Paperwork Reduction Act: The EPA has determined that there is no
need for an Information Collection Request under the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq., because this action would not
impose any new federal reporting or recordkeeping requirements. Because
the State of North Dakota has adopted the EPA's Industrial Pretreatment
regulations at 40 CFR 403.10(f)(1), the matters subject to reporting
and recordkeeping requirements will remain the same after the EPA's
approval of North Dakota's program.
B. Regulatory Flexibility Act: The Regulatory Flexibility Act
(RFA), as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996 (SBREFA), 5 U.S.C. 601 et seq., generally requires an
agency to prepare a regulatory flexibility analysis of any rule subject
to notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities.
As Regional Administrator for EPA Region 8, I hereby certify,
pursuant to 5 U.S.C. 605(b), that this action will not have a
significant economic impact on a substantial number of small entities.
C. Unfunded Mandates Reform Act: Title II of the Unfunded Mandates
Reform Act (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, the EPA is generally required to 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. The EPA's
approval of North Dakota's program is not a federal mandate because
there is no federal mandate for states to establish industrial
pretreatment programs.
D. National Technology Transfer and Advancement Act: Section 12(d)
of the National Technology Transfer and Advancement Act of 1995
(NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note),
directs the EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards, e.g., material specifications, test methods, sampling
procedures, and business practices, that are developed or adopted by
voluntary consensus standards bodies. This action does not involve the
use of technical standards subject to the NTTAA.
E. Executive Order 12866: Under Executive Order 12866 (58 FR 51735,
October 4, 1993), the EPA must determine whether its regulatory actions
are ``significant'' and therefore subject to review by the Office of
Management and Budget. The EPA has determined that this approval action
is not ``significant'' for purposes of Executive Order 12866 because,
as mentioned above, North Dakota has adopted the EPA's industrial
pretreatment program regulations.
F. Executive Order 12898--Environmental Justice: Executive Order
12898, entitled ``Federal Actions to Address Environmental Justice in
Minority Populations and Low-Income Populations,'' dated February 11,
1994, focuses federal attention on the environmental and human health
conditions of minority populations and low-income populations with the
goal of achieving environmental protection for all communities. Today's
action will not diminish the health protection to minority and low-
income populations because, as mentioned above, it will not impose any
different requirements than those already in effect for industrial
pretreatment facilities.
G. Executive Order 13045--Protection of Children: Executive Order
13045, dated April 23, 1997 (62 FR 19885), applies to any rule that (1)
is determined to be ``economically significant'' as defined in
Executive Order 12866, and (2) concerns an environmental health or
safety risk that the EPA has reason to believe may have a
disproportionate effect on children. This action is not subject to
Executive Order 13045 because it is not economically significant as
defined in Executive Order 12866, and it does not concern any
additional health or safety risks to children.
H. Executive Order 13175--Consultation with Tribes: Under Executive
Order 13175, no federal
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agency may issue a regulation that has tribal implications, that
imposes substantial direct compliance costs on Indian tribal
governments, and that is not required by statute, unless the federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments or the agency consults with
tribal officials early in the process of developing the proposed
regulation. This action will not significantly affect any Indian
tribes. As indicated above, North Dakota is not authorized to implement
its pretreatment program in Indian country. The EPA will continue to
administer the existing Industrial Pretreatment program in Indian
country in North Dakota.
I. Executive Order 13132--Federalism: Executive Order 13132,
entitled ``Federalism,'' dated August 10, 1999 (64 FR 43255), requires
the EPA to develop an accountable process to ensure ``meaningful and
timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' The phrase
``policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on States, on the relationship between the national government
and States, or on the distribution of power and responsibilities among
the various levels of government.'' This action does not have
federalism implications. It will not have any substantial direct
effects on the States, on the relationship between States and the
national government, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132. It will merely put in place a State
regulatory program that is identical to the existing federal program.
J. Executive Order 13211--Energy Effects: Because it is not a
``significant regulatory action'' under Executive Order 12866, this
action is not subject to Executive Order 13211, ``Actions Concerning
Regulations that Significantly Affect Energy Supply, Distribution, or
Use,'' 66 FR 28355 (May 22, 2001).
Dated: March 19, 2004.
Robert E. Roberts,
Regional Administrator, Region VIII.
[FR Doc. 04-6928 Filed 3-26-04; 8:45 am]
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