[Federal Register Volume 59, Number 7 (Tuesday, January 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-493]


[[Page Unknown]]

[Federal Register: January 11, 1994]


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

ENVIRONMENTAL PROTECTION AGENCY
[FRL-4823-8]

 

Water Pollution Control; Approval of Application by South Dakota 
To Administer the National Pollutant Discharge Elimination System 
Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Approval of application.

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

SUMMARY: On December 30, 1993, the Acting Regional Administrator for 
the Environmental Protection Agency (EPA), Region VIII, approved the 
application by the State of South Dakota to administer and enforce the 
national pollutant discharge elimination system (NPDES) program for 
regulating discharges of pollutants into waters within the State.

EFFECTIVE DATE: December 30, 1993.

FOR FURTHER INFORMATION CONTACT: Janet LaCombe at (303) 293-1593, NPDES 
Branch, (8WM-C); U.S.E.P.A., Region VIII; Denver Place, 999 18th 
Street, suite 500; Denver, CO 80202-2466.

SUPPLEMENTARY INFORMATION: The application of the South Dakota 
Department of Environment and Natural Resources (DENR) was received by 
EPA on April 28, 1993. Several modifications were made to the 
application package, based on discussions between the EPA, the DENR, 
and the Office of the Attorney General. The final changes, including 
the signing of the Memorandum of Agreement by the Governor, were 
completed on August 30, 1993.
    South Dakota's application was described in Federal Register 
notices dated September 1 and 9, 1993, at 58 FR 46145 and 47417, and in 
notices published in the Rapid City Journal and the Sioux Falls Argus-
Leader on August 27 and September 10, 1993. In the September 1, 1993 
Federal Register notice and the August 27, 1993 newspaper notices, EPA 
highlighted three issues upon which it specifically requested public 
comment. These issues concerned unsigned complaints from the general 
public, penalty authority, and citizen intervention in enforcement 
actions.
    Copies of South Dakota's application package were available for 
public review at the EPA Region VIII office and at the DENR office in 
Pierre, South Dakota. Copies also could be purchased from the DENR at a 
cost of $10.00.
    EPA provided copies of South Dakota's public notices to permitted 
facilities, tribal councils and tribal environmental agencies, and 
environmental groups in South Dakota. The mailing list used is part of 
the record of the program application and review process. By letter 
dated August 25, 1993, EPA provided copies of South Dakota's 
application to the U.S. Fish & Wildlife Service, and to the South 
Dakota State Historic Preservation Officer.
    As part of the public comment process, EPA conducted two public 
hearings on South Dakota's application. The hearings occurred on 
October 14, 1993 at the Matthew Training Center, Joe Foss Building, 523 
East Capitol, Pierre, South Dakota, beginning at 3 and 7 p.m. The first 
hearing lasted approximately one hour, and the second lasted about 45 
minutes. The register of those attending is contained in the 
administrative record. In addition, until October 22, 1993, EPA 
accepted written comments from the public. All comments or objections 
presented at either public hearing or received in writing by EPA Region 
VIII by October 22, 1993, were considered by EPA.
    Comments were received regarding the following issues: (1) Unsigned 
complaints, (2) penalty authority, (3) citizen intervention, (4) 
jurisdiction over Indian Country, (5) pretreatment program, (6) 
mechanisms for ensuring protection of endangered and threatened 
species, and (7) overall benefits or lack of benefits resulting from 
authorization. EPA response to all comments are contained in this 
notice. Summaries of the comments and EPA's responses follow. The 
comments and hearing record are contained in the administrative record 
supporting this notice.

I. Unsigned Complaints

    Federal regulations at 40 CFR 123.26(b)(3) and (4) require a State 
approved to administer the NPDES program to maintain a program for 
investigating information regarding violations of applicable program 
and permit requirements, to maintain procedures for receiving and 
ensuring proper consideration of information submitted by the public 
about violations of applicable program and permit requirements, to 
encourage public efforts in reporting violations, and to make available 
information on reporting procedures.
    As outlined in EPA's September 1, 1993 Federal Register notice and 
August 27, 1993 newspaper notices, Section 34A-2-111 of the South 
Dakota Codified Laws (SDCL) prohibits the DENR from performing 
inspections or conducting other investigatory activities pursuant to 
SDCL Sections 34A-2-40, 34A-2-44, and 34A-2-45 based on, or as a result 
of, information received from the general public unless the person 
providing the information signs a complaint, which is to remain 
confidential with the DENR. The statement by the South Dakota Attorney 
General notes that information in complaints from the general public 
made to another agency or DENR program and then referred to the DENR 
NPDES program is not considered ``as a result of'' a complaint from the 
general public.
    The State has described the means by which it will consider and 
respond to NPDES-related information from the general public and from 
other state governmental agencies. The DENR will investigate and 
respond to all citizen complaints where a signed complaint form has 
been received and will investigate all complaints received from other 
government agencies. At the time an unsigned complaint is received, 
DENR will determine whether appropriate department authorities exist 
under any state environmental statute to handle the unsigned complaint. 
If not, the citizen shall be referred to the South Dakota Department of 
Emergency and Disaster Services, the South Dakota Department of Game, 
Fish & Parks, or another appropriate State agency. The appropriate 
State agencies shall receive anonymous complaints and either 
investigate under their authorities or sign and refer the complaint to 
DENR. The process used for investigating and responding to unsigned 
complaints will be published in major newspapers in South Dakota and 
will be prominently posted in the main office and the field offices of 
the DENR.
    In its oversight role, EPA has established a ``hotline'' (1-800-
227-8917) to receive complaints, both identified and anonymous, 
regarding NPDES-related activities in South Dakota. To communicate this 
fact to the general public, EPA will publish the hotline number in the 
Rapid City ``Journal'' and the Sioux Falls ``Argus-Leader'', as well as 
sending a notice to public interest groups and permitted facilities. 
The hotline number may be used by callers who have information 
concerning a possible violation of an NPDES permit or program 
requirement. The caller will be referred to a staff member of the EPA 
Region VIII NPDES Branch. This staff person will record the information 
received and make a decision whether or not an investigation is needed. 
EPA may conduct the investigation or request that the DENR investigate.

A. Comments in Support of Sec. 34A-2-111

    Those supporting South Dakota's system for addressing unsigned 
complaints included the DENR, municipal, agricultural, and mining 
associations, municipalities, another State agency, and industrial 
dischargers.
    1. Several commenters questioned the motives of people who submit 
unsigned complaints and/or the merits of such complaints. They referred 
to the right to face one's accusers. Their comments included:
    A few persons stated that unsigned complaints result from feuds, 
cranks, or competitors.
    Two expressed the opinion that if a complaint is genuine, the 
person making it should have the commitment to sign it. A 
representative of an agricultural group that identified itself as the 
prime sponsor of Sec. 34A-2-111 stated that ``there should be a great 
deal of responsibility laid at the feet of those people making the 
complaint * * *. [South Dakota is] a stand-up place * * * South Dakota 
newspapers, by and large, don't accept letters to the editors that are 
unsigned. South Dakota State agencies, by and large, do not accept 
letters of complaint or phone calls that are anonymous. South Dakota 
Attorney General's office does not accept complaints that are 
anonymous, with some exceptions.'' Two commenters stated that a person 
is entitled to face his accusers and is protected from anonymous 
harassment. One of them cited the Sixth Amendment of the U.S. 
Constitution.
    2. Some commenters indicated that the state government and the 
regulated community should be protected from unsigned complaints:
    One city official noted that unsigned complaints can have a 
detrimental effect upon an organization otherwise trying to work 
cooperatively to achieve compliance.
    ``* * * an anonymous phone call or letter is too easy a method to 
trigger an environmental audit * * *.''
    ``[Section] 34A-2-111 is a necessary statute that helps to limit 
the expenditure of staff time on frivolous personal grudge type 
complaints.''
    3. Some commenters praised DENR's record in conducting 
investigations and allowing for public participation. They also noted 
the existence of the EPA ``800'' number. Their remarks included:
    The Secretary, DENR, asserted in his written statement: ``To our 
knowledge, since the passage of this law [SDCL Section 34A-2-111], this 
law has never hindered our ability to address water pollution incidents 
nor has it hindered public involvement.''
    ``* * * the current SDCL Section 34A-2-111 is working very well. 
DENR is very responsible in investigating complaints and has a system 
in place to guarantee that investigations take place once a complaint 
arises and to keep the identity of the party making the complaint 
confidential.''
    A few commenters referred to the fact that EPA is maintaining an 
``800'' number for persons not wishing to communicate with the state.
    4. Several commenters indicated that the state's system provides 
sufficient opportunity for public participation and agency 
investigation of complaints. They supported this point by identifying 
three ways in which Section 34A-2-111 was restricted in its 
applicability:
    a. The prohibition applies to complaints from the general public, 
not to complaints made or passed on by another federal, state or local 
level of government. If DENR determines that it lacks authority to 
investigate a complaint, the complaint is then referred to another 
agency.
    b. The prohibition does not apply to the state's mining laws, solid 
waste laws, and hazardous waste laws. Most complaints from factory 
workers will relate to hazardous waste violations, which are not 
covered by this prohibition.
    c. The prohibition does not apply to DENR's right of entry, to the 
issuance of an emergency order, to determinations of responsibility for 
discharges, to waste disposal into state waters, and to more general 
authorities to investigate violations of Chapter 34A-2.

B. Comments Opposing Sec. 34A-2-111

    Those opposing South Dakota's system for handling unsigned 
complaints included environmental groups and individuals working in 
municipal facilities.
    1. Some commenters stated that people hesitate to sign complaints 
because they fear reprisals:
    An anonymous individual who described himself or herself as a 
``person employed in the wastewater and pretreatment field in the State 
of South Dakota'' stated, ``Many times people are reluctant to sign 
complaints because of some type of repercussion.''
    ``It is a reality that many individuals are reluctant to report 
suspected or obvious discharge violations for fear of reprisal. Real or 
perceived, it is a reality.''
    An environmental group (which stated that it had recently concluded 
a successful citizen's suit against a mining company in South Dakota) 
commented that it had filed written complaints with the DENR based on 
anonymous tips that it, rather than the DENR, had received. Citizens 
had been reluctant to file a complaint even if it was considered 
``confidential.'' This group also stated that it had never found any 
citizen complaint to be frivolous or harassing.
    2. Several commenters criticized the process for investigating and 
responding to unsigned complaints, described in Item E.4. on page 7 of 
the MOA. Their comments included:
    ``The MOA should contain unequivocal language setting forth a 
specific procedure for SDDENR to follow for maintaining (1) an 
investigation of violations and (2) procedures for ensuring proper 
consideration of information from the public about violations.''
    ``We do find fault, at times, with the depth and timeliness of the 
`investigation' conducted by DENR upon our filed complaints. 
Investigations conducted several days to weeks after a complaint is 
filed may miss a violation.''
    ``In South Dakota, with its small population and overlapping 
networks of personal and business relationships, unsigned complaints--
if they are seriously considered by SDDENR are likely to be the most 
fruitful sources of violation reporting.''
    ``It is not clear * * * whether department authorities exist within 
SDDENR to appropriately handle unsigned citizen complaints if referred 
by another State agency. . . . We do not consider it appropriate to 
burden other State agencies whose administrative and field staff are 
already clearly overworked.''
    ``Any unsigned complaint will simply fall into the cracks between 
agencies and nothing will be done.''
    ``The Departments of Agriculture and Game, Fish and Parks do not 
have authority or expertise for dealing with complaints that are 
properly the concern of SDDENR.''
    3. Some commenters indicated that SDCL prevented South Dakota's 
application from meeting pertinent authorization requirements:
    ``We believe neither SDCL 34A-2-111 nor EPA's proposed solution 
meets the requirements of Section 402(b)(2)(B) and Section 402(b)(7) of 
the Clean Water Act, and 40 CFR Sections 123.26(b)(3) and (4) * * *. 
EPA should withhold NPDES delegation until SDCL 34A-2-111 is 
repealed.''
    ``The requirements of forty (sic) CFR Sections 123.26(b)(3) and (4) 
will not be met under the MOA because of the convoluted nature of 
provisions for receiving and dealing with unsigned complaints.''
    4. Some commenters stated that the state's procedure for handling 
unsigned complaints created the impression that the state favored 
special interests over the general public:
    ``If there's a problem, [most citizens] want action, no matter whom 
they call. For a citizen to be told they have to call another agency to 
get a water problem addressed just confirms [the] citizen's view of 
government as controlled by special interests who get laws like 34A-2-
111 approved * * *. State government should not be empowered by EPA to 
cripple or make more difficult and confusing citizens' ability to work 
directly with the proper state regulators because of paranoia on the 
part of the special interests who are regulated under water quality 
laws.'' Two individuals commented in a letter that they were ``appalled 
of (sic) the manner in which the State intends on handling or rather 
not handling citizen complaints and the legalese double talk the State 
Attorney General's office is trying to portray as meaningful 
procedures.''

C. EPA's Response to Comments on Sec. 34A-2-111

    The State has a program and procedures for public reporting of 
violations that ensures their proper consideration, even though the 
existence of Sec. 34A-2-111 appears to require a more cumbersome 
process than is desirable. EPA might propose a simpler program or 
procedures for a hypothetical ``model'' state program. However, under 
the Clean Water Act, a State is provided flexibility in achieving the 
minimum requirements of the Act, including those for public 
participation. If approached by another state on suggestions for public 
reporting, EPA would recommend against inclusion of a Section 111-type 
provision. EPA encourages South Dakota to repeal Section 111 as 
inefficient and having the potential to limit the discretion of the 
very state agency entrusted to exercise enforcement discretion.
    EPA doubts that facilities subject to DENR investigations could use 
Section 111 as a means to avoid the consequences for failing to comply 
with Sec. 34A-2-40, -44, and -45. DENR investigators are not required 
by any provision of state law to identify the basis for the information 
leading to investigation. Moreover, DENR has authority to initiate 
prosecution based on verified information. Notwithstanding questions 
about enforceability, DENR has indicated its intention to faithfully 
implement applicable provisions of state law, as well as to implement 
public participation procedures to meet the requirements of 40 CFR 
123.27(d). EPA encourages DENR to periodically evaluate the 
effectiveness of its public reporting procedures in providing public 
participation in the NPDES enforcement program in South Dakota, 
particularly in light of the existence of Section 111.
    The fact that the prohibition in 34A-2-111 does not apply to 
complaints from governmental entities or to other State environmental 
programs provides the State some options for the general public to use 
in reporting concerns about possible violation or problems related to 
wastewater treatment or effluent. The description of the State process 
will be published in major newspapers in South Dakota and posted in the 
DENR offices located throughout the State. Therefore, mechanisms exist 
to ensure proper consideration of information from the general public 
and are sufficient to meet the minimum requirements of public 
participation consistent with 40 CFR 123.26.
    EPA acknowledges there may be some delay in investigation of 
information received from the general public because of the requirement 
for a signed complaint. South Dakota has explained, however, that the 
requirement should not unduly delay prompt investigation when the 
member of the general public indicates a willingness to identify 
himself or herself and sign a complaint.
    The volume of unsigned complaints which are received by any one 
entity is not expected to be so great that it would strain the 
resources available to that organization. However, the DENR is 
responsible for assuring whatever resources needed to respond to 
unsigned complaints are available, as well as providing adequate 
resources to administer the NPDES program as a whole.
    EPA notes that the adequacy and effectiveness of DENR's public 
reporting requirements are easily verified, both by EPA and the general 
public. If the described procedures do not, in practice, provide for 
adequate and effective public reporting, DENR's compliance with public 
reporting requirements may be reexamined. Should subsequent 
administrative or judicial interpretations of Section 111 broaden its 
scope from that described in the program submission or otherwise impair 
implementation of the public reporting procedures, EPA may reevaluate 
whether the existence of Section 111 yet enables DENR to adequately 
administer the NPDES program.
Motives of Anonymous Tipsters, Rights of the Accused, and Complainant 
Fear of Reprisal
    EPA does not dispute that some complaints may be submitted with 
questionable motives or that signed complaints may often be more 
credible than unsigned ones. ``Crank'' calls may be from disgruntled 
neighbors or business competitors. However, a statute is not needed to 
eliminate the problems associated with frivolous calls. The DENR has 
professionally trained staff capable of screening out such calls, based 
on the information provided or not provided. Such calls are also 
possible from persons who do sign their names.
    The fact that the prohibition applies only to the general public 
and not to other governmental entities allows the NPDES program to use 
information referred to it by these entities. This information may be 
provided as problems the entities have identified in the course of 
their duties (including accepting referrals). It may also come from 
problems identified by complainants to other entities about their 
programs which contain information also applicable to the NPDES 
program.
    Regarding the rights of the accused, the Sixth Amendment right to 
face accusers applies in criminal cases when the testimony of an 
informant is to be used in trial. However, if an informant's tip is 
independently confirmed by a law enforcement agency and the testimony 
of the informant is not needed at trial, then any rights under this 
amendment have not been affected.
    Fear of reprisal may occur even in situations where a person does 
not have to provide a name, since in small communities it might be 
fairly easy to figure out or at least narrow down the persons likely to 
have reported the information. In addition, employees may fear reprisal 
from their employers should they report possible violations of NPDES 
statutes, regulations, or permit conditions. However, such fears may be 
diminished by the fact that SDCL 34A-2-111 requires the identity of the 
complainant to be kept confidential.
Protection of Agencies and Regulated Community/Favoring Special 
Interests
    A frivolous claim may place a strain on an organization trying to 
cooperate. However, the potential for strain is offset by the potential 
to promote the general good which complaints may provide the State in 
identifying and correcting problems early on. Also, it would seem that 
there would be few instances of complaints being merely frivolous or 
harassing.
    There is always the chance that actions by governmental entities 
may be misconstrued by the general public. This is not a basis for 
determining a program does not meet the requirements for delegation. 
However, this is an issue both the SDDENR and the EPA will be sensitive 
to as they administer and oversee the NPDES program.
    The State of South Dakota is a sparsely populated state with 
relatively few industries. Moreover, the existence of overlapping 
business and personal networks provides an opportunity for someone 
removed from a situation to provide information instead of someone 
concerned about retaliation from an employer. South Dakota's small 
population and overlapping networks may be productive sources of 
information. These networks can work to the advantage of the NPDES 
program in that possible NPDES violations, particularly those affecting 
surface waters may be reported in connection with information supplied 
to other environmental programs. For example, according to the DENR, 
the DENR Ground Water program has the lead on spills and contacts the 
NPDES staff when there is a potential for surface waters to be 
affected. The Mining program will generally receive any tips regarding 
mining problem spills/discharges (e.g. cyanide) and share them with the 
NPDES staff. Game Fish & Parks recently referred a case of a discharge 
without a permit to the DENR. That agency also uses its own authority 
when the discharge is in the area of a fishery. All of these programs 
are not affected by the prohibition in SDCL 34A-2-111 and, in the past, 
have received and forwarded complaints which also related to NPDES-
related activities.
    The concern expressed that information may fall between the cracks 
is a valid one. It is possible this could occur in any process for 
receiving information sources outside the administering office. 
However, the system established for investigating and responding to 
complaints provides that the DENR will investigate and respond to all 
citizen complaints where a signed complaint form has been received and 
will investigate all complaints received from other government 
agencies.
Conclusion
    EPA determines that the procedure South Dakota has established is 
adequate to comply with the Clean Water Act and with NPDES federal 
regulations. South Dakota has established a process to deal with issues 
raised by the general public by accepting signed complaints and being 
required to keep the identity of the source confidential and by 
referring other complaints to another State agency. The Governor, as a 
signatory to the MOA, has committed to follow the process for receiving 
and responding to information from sources outside the State NPDES 
program.
    Though section 111 may not provide an adequate program for public 
reporting in other states or for other programs, under the particular 
circumstances of the DENR NPDES program, the state procedures are 
adequate for the following reasons: (1) South Dakota is not heavily 
industrialized, (2) the prohibition pertains only to water programs and 
not other media programs, (3) the state is sparsely populated for the 
most part, (4) the right of entry (Sec. 34A-2-46) is not impaired, (5) 
the prohibition provision does not appear to be directly enforceable by 
dischargers, and (6) the State NPDES program retains the authority to 
respond in emergencies (see 34A-2-68), to enforce against persons 
causing pollution of waters (see 34A-2-21), and to conduct 
investigations to determine the responsible person for causing a 
discharge which may cause or has caused pollution of state waters (see 
34A-2-71.1) regardless of the source of information leading to these 
actions.
    The situation in South Dakota is such that there are overlapping 
networks of state agencies and there are active environmental groups 
which will identify issues on behalf of their membership and of 
individuals who communicate information and concerns to their groups.
    EPA notes that anonymous tips are just one source of complaints, 
albeit a significant source. The statute does not place restrictions on 
any other sources of information or other activities than those defined 
in 34A-2-40, -44, and -45.
    EPA oversight includes an hotline number (1-800-227-8917) to 
receive complaints from all sources. Oversight also includes monitoring 
the DENR process and results from public participation in compliance 
and enforcement. If there appears to be a problem, EPA will revisit 
this aspect of the program with DENR.

II. Penalty Authority

    Section 402(b)(2)(B) of the CWA requires an authorized state 
program to have authority to inspect, monitor, enter, and require 
reports to at least the same extent as required by section 308 of the 
CWA. Section 402(b)(7) of the CWA requires an authorized state program 
to have adequate authority to abate violations of permits or the permit 
program through penalties and other means of enforcement. EPA State 
NPDES program requirements at 40 CFR 123.27(a)(3)(i) provide that an 
approved state program is to have the authority to recover civil 
penalties for the violation of ``any NPDES filing requirement'' and 
``any duty to allow or carry out inspection, entry or monitoring 
activities,'' as well as for the violation of any NPDES permit 
condition or any regulation or order issued by the state program 
director.
    As outlined in EPA's September 1, 1993, Federal Register notice and 
August 27, 1993 newspaper notices, South Dakota does not have direct 
statutory authority to collect civil penalties, or criminally enforce, 
a failure to comply with SDCL 34A-2-44 (record-keeping), 34A-2-45 and -
46 (inspection authorities), due to a lack of citation to SDCL 34A-2-75 
(penalty provision) in these sections. However, because the Department 
[of Environment and Natural Resources] can prosecute (both civilly and 
criminally) violations of permit conditions and because it can set 
permit conditions for recording, reporting, monitoring, entry, and 
inspection under 34A-2-40, it can enforce these statutes for permitted 
facilities.
    The Department can, with regard to unpermitted facilities, obtain 
both the records and entry for inspections pursuant to search warrants 
issued on the basis of the criminal provisions of SDCL 34A-2-75 and the 
violation of SDCL 34A-2-36 (operating without the required permit). 
Civil penalties for failure to comply with SDCL 34A-2-44, -45, and -46 
by an unpermitted facility are available only through violation of an 
order issued by the Department pursuant to SDCL 34A-2-53.

A. Comments Favoring Existing Penalty Authority

    The DENR and various members of the regulated community expressed 
opinions that the lack of a direct authority to impose penalties for 
violations of the cited statutes would have little affect on the 
ability of the State to exact penalties for failure to comply with the 
statutes.
    One commenter from the regulated community thought that no 
detrimental effects would be expected and, therefore, the system for 
collecting penalties was adequate until such time as the matter was 
corrected by the legislative process. The Secretary of the DENR noted 
that the Attorney General's Statement indicated that reporting 
requirements will be included in the permit, and are therefore 
enforceable for permitted facilities. As to unpermitted facilities, the 
Secretary of the DENR (who would be the party issuing orders) stated 
that the DENR could issue an enforcement order in a timely manner to 
require any necessary reporting or sampling and that the DENR could 
enforce these orders. The Secretary also cited a recent water pollution 
enforcement case settlement which included a penalty of $489,000 and 
was accomplished without the authority to enforce any NPDES condition 
or requirement. He stated that delegation would only increase the 
abilities of the DENR to enforce violations of the state's 
environmental laws. Another state agency noted that ``It appears * * * 
that the case where this EPA concern would be applicable is for 
facilities that are discharging without a permit and not keeping 
records. For these facilities, failure to have a permit would be a more 
severe violation than the failure to keep records.''
    One commenter thought that penalties for items normally found in a 
permit should not begin to accrue for an unpermitted facility until 
after the state issues an order.

B. Comments Criticizing Existing Penalty Authority

    Those who criticized the existing authority were the pretreatment 
coordinator for a municipal treatment facility and one environmental 
group. They questioned the ability of the authority to stand up to 
judicial review and the round-about means the DENR would have to use to 
exercise the authority in collecting penalties.
    One commenter expressed the opinion that the state's authority to 
collect penalties from unpermitted facilities is not clear, 
particularly in light of the Freeman v. South Dakota lawsuit. In that 
case, the court found that Mr. Freeman's civil rights were violated 
when, upon refusing State health inspectors entry, he was served with a 
closure order. The commenter stated that the finding was made because 
the citation under licensure statutes failed to cite an enforcement 
provision.
    An environmental group indicated that the State's roundabout legal 
reasoning to support its authority to obtain records and entry to 
inspect at unpermitted facilities may be overlooked by a judge faced 
with what appears to be a clear failure to provide for criminal and 
civil sanctions for record-keeping or inspection violations. Specific 
penalty provision language must be added to 34A-2-44, -45, and -46 in 
order to comply with 40 CFR 123.27(a)(3)(i).
    Another environmental organization stated that the state should 
have direct statutory authority to collect civil penalties and to 
criminally enforce a failure to comply with Sec. 34A-2-44. They also 
noted that the MOA should require South Dakota to adopt less round-
about methods to obtain records and entry and to be able to do so 
without the DENR having to issue an order. They believed that formal 
issuance of orders and search warrants can take too much time.

C. EPA's Response to Comments on Penalty Authority

    EPA's authorization regulations require civil penalties to be 
recoverable for the violation of any NPDES permit condition; any NPDES 
filing requirement; any duty to allow or carry out inspection, entry or 
monitoring activities; or any regulation or orders issued by the State 
Director. See 40 CFR 123.27(a)(3)(i). The State has demonstrated an 
adequate authority and methodology for collecting penalties from 
permitted and unpermitted facilities. However, EPA would recommend a 
legislative amendments to 34A-2-44, -45, and -46 to define failure to 
comply with each as a violation enforceable through 34A-2-53. These 
amendments would allow a more direct, and thereby more effective, 
implementation of the enforcement program.
Adequacy of the Ability To Recover Penalties
    The State has shown that legal mechanisms exist for exacting 
penalties tied to permitted and unpermitted facilities which fail to 
comply with SDCL 34A-2-44, -45, and -46. The authorities used are not 
specifically based on a violation of these statutes. However, they do 
provide for 'civil penalties to be recoverable' for refusal to allow or 
carry out inspection, entry or monitoring activities, which is what 40 
CFR 123.27(a)(3)(i) requires.
    The situation in Freeman v. South Dakota does not apply to the 
State's authority to collect penalties for refusals to allow the state 
to inspect potential water pollution violations. In that case, State 
inspectors had summarily terminated a campground's license because the 
campground's operator would not allow the state to inspect without a 
warrant. In Freeman, civil rights were violated because the State 
inspectors lacked statutory enforcement authority. In the Case of South 
Dakota NPDES, SDDENR does have adequate statutory authority to issue 
administrative orders. The South Dakota Attorney General has stated 
South Dakota has adequate statutory authority to implement the program 
described.
Calculation of Penalties
    Ignorance of the law is not an argument for deferring penalties. 
The regulated community is notified through public notice of the 
requirements for permits, right of entry, etc. It is their 
responsibility to be aware of these requirements and be accountable for 
them from the time the requirements become effective.
    EPA agrees that the penalty for failure to have a permit might be 
more severe than for a failure to keep records by itself. However, both 
requirements are normally available to the regulator in taking 
enforcement actions. The existence of a penalty for a discharge without 
a permit does not, by itself, offset the need for a mechanism to 
collect penalties for failure to allow or carry out inspection, entry 
or monitoring requirements. As noted earlier, such a mechanism exists.
    Regarding the date at which a violation begins, the State has 
asserted that administrative orders or search warrants could be issued 
within one or two days. Therefore, the number of days of violation used 
to calculate penalties for unpermitted facilities would be almost the 
same as for permitted facilities. In cases where a discharge causes 
pollution of any waters of the state, the penalty can be calculated for 
each day the discharge occurred as a violation of 34A-2-21, subject to 
a Sec. 34A-2-75 order. The number of days of violation is just one 
factor applied in calculating penalties. The small difference in the 
number of days of violation between permitted and unpermitted 
facilities could be offset by the presence of other factors in 
calculating and negotiating the final penalty (e.g. the existence of 
another violation -discharge without a permit). Therefore, the 
immediate revision of SDCL 34A-2-44, -45, and -46 is not required. 
However, EPA does consider such revisions desirable, so that the State 
would have more direct remedies for these violations.
    It should also be noted that EPA, in its oversight role, can take 
enforcement action. Typically, EPA would send to the State a Notice of 
Violation and give the State 30 days to take action. If the State were 
not to take sufficient action, including not collecting a large enough 
penalty, EPA could file an order and collect penalties from the date 
the violations started. Citizen suits are also a means to assure 
appropriate penalties are collected.
Conclusion
    EPA finds that the penalty authority and process for collecting 
penalties is adequate and serves as a protection against noncompliance 
with water pollution control law, rules, and permits. EPA's oversight 
role offers a second level of protection. A third level of protection 
is offered by related statutes, such as prohibiting discharges which 
may cause or cause pollution of waters of the state (see 34A-2-21), 
prohibiting discharge of waste or pollutants without a permit (see 34A-
2-36), and prohibiting reduction of existing water quality (see 34A-2-
22). Therefore, the DENR NPDES program adequately meets the 
requirements for recovering penalties.

III. Citizen Intervention

    EPA's September 1, 1993 Federal Register and August 27, 1993 
newspaper notices requested public comment on South Dakota's statutory 
procedure for citizen intervention in administrative enforcement 
actions, as required by 40 CFR 123.27(d). South Dakota has certified 
that it allows intervention as of right in administrative enforcement 
actions pursuant to SDCL Sec. 34A-10-2. It has indicated that Sec. 34A-
10-2, considered alone, appears to grant merely ``permissive 
intervention''; that is, intervention if no other party objects). 
However, South Dakota has also certified that if a citizen is denied 
intervenor status in an administrative case, he may file a lawsuit in 
circuit court to have the court order him to be named as a party in the 
administrative proceeding, pursuant to Sec. 34A-10-5. Because of the 
possibility for such a circuit court proceeding, South Dakota's 
Attorney General construes SDCL 34A-10-2 to allow mandatory 
intervention in administrative procedures. The Memorandum of Agreement, 
a document signed both by the State of South Dakota and the EPA, states 
that the SDDENR will allow intervention as of right in civil 
proceedings to at least the same extent required by 40 CFR 123.27(d)(1) 
and shall not oppose intervention in administrative proceedings as 
provided by Sec. 34A-10-2.

A. Comments Favoring Existing Intervention Procedure

    Members of the regulated community commented that the statutory 
procedure afforded citizens an adequate right of intervention. One 
specific comment, made by a member of the regulated community, was that 
the State assurance in the MOA makes the citizen right to intervention 
mandatory. This commenter also noted that the Attorney General 
Statement interprets SDCL 34A-10-2 to mean that the citizen's right to 
intervene is mandatory.

B. Comments Opposing Existing Intervention Procedure

    Environmental groups and individual citizens criticized the 
existing intervention procedure and its application by the DENR.
    1. Some commenters stated that intervention rights were not being 
honored.
    One environmental group stated that it was ``* * * especially 
concerned about the problems posed * * * by the progressive subtle and 
not so subtle deterioration of participation by citizens and non-profit 
citizens organizations in quasi-judicial hearings.'' It referred to 
individual citizens being ignored at public hearings, public documents 
being unavailable for review and comment before a contested case 
hearing, and decisions being given little publicity. One individual 
commented that at a public hearing in the Fall of 1992 he ``* * * 
watched (and objected) as BME Board members subverted the rules of that 
hearing by allowing a mining industry lawyer take control of the 
hearing. Board members allowed the attorney to cross examine citizens 
as if they were under oath when the citizens were simply there to 
testify on their own behalf. The incidents are a matter of record. They 
are also quite typical of DENR.''
    Another environmental group cited instances where it or individual 
citizens were excluded from permit modification, remediation, and 
negotiation processes.
    Another individual citizen's letter provided comments which ``* * * 
center[ed] on the State of South Dakota's continued and specific 
efforts to stifle and judicially dissuade individuals from pursuing 
environmental issues. They concluded that ``[O]bviously, the state of 
South Dakota has little understanding of citizen participation and 
rights to involvement.''
    ``Politically powerful applicants regularly 'short-circuit' the 
contested case procedure with active help from the Attorney General and 
the DENR. In several controversial cases * * * DENR and/or the 
applicant have used various procedures to obtain 'quickie hearings' 
designed to thwart due process and a fair hearing. One state board, at 
the urging of the Attorney General, * * * carved out a novel 
justification, citing SDCL 1-22-27, that allows applicants the right to 
short-circuit the contested case process.''
    ``A circuit court remedy for denial of intervenors status is NO 
remedy because of expense and unwieldiness.''
    2. Commenters expressed the concern that public interest and 
environmental groups must be represented by an attorney at contested 
cases hearings.
    An environmental group stated that DENR has denied them 
intervention in administrative hearings if they are not represented by 
an attorney. They noted that the State's application does not clearly 
state whether an attorney is required.
    ``Public interest groups must be represented by an attorney at 
contested case hearings. Since hardly any of us can afford such, the 
public interest has rarely been represented in the past few years.''
    ``The Board [of Minerals and the Environment] [h]as so decreed, and 
the state Attorney General's office has rendered an opinion of 
agreement that only attorney's (sic) can present cases before the Board 
if the group appearing before the Board is an association, corporation, 
or other similar entity. The Board has effectively prevented 
environmental groups from appearing before the Board without the 
considerable expense of an attorney. It is our understanding that other 
State Boards do not have the attorney requirement.''

C. EPA's Response to Comments Concerning Intervention Procedure

    EPA has determined that DENR intervention authority and procedures 
adequately meets the requirement of 40 CFR 123.27(d). Citizen 
intervention rights will be honored. There is currently no requirement 
for public interest groups to be represented by attorneys at NPDES 
contested case proceedings.
Honoring Intervention Rights
    The great majority of the comments expressing concerns with the 
application of intervention rights pertained to non-NPDES State program 
topics (e.g. mining, sewage ash, landfills) and a State board (Board of 
Minerals and Environment) which will not administer the NPDES program 
in South Dakota.
    South Dakota statutes, rules, and program documents provide citizen 
access to information. SDCL 1-27-1 specifically allows for open 
inspection of all records and documents during normal business hours. 
The MOA (page 7, item E.1) provides public access to NPDES files during 
normal working hours. Public notice of proposed general permits, major 
permits, and pretreatment program applications is provided for in the 
MOA (page 7, item E.3) and the Program Description (page 9). South 
Dakota Rule 74:03:13:02 requires the DENR to public notice any 
contested case hearing requested and the reasons for the hearing. The 
public notice of any proposed settlement of a State enforcement action 
is required only when the authority which allows intervention as of 
right is not demonstrated (see 40 CFR 123.27(d)).
    The Attorney General Statement construes the language of SDCL 34A-
10-2 concerning intervention to be mandatory. In addition, both the MOA 
(page 3, item A.13) and the Program Description (page 19) allow for 
citizen intervention as of right in civil proceedings equivalent to 
that required by 40 CFR 123.26(d)(1).
Representation by an Attorney
    The South Dakota Bar Association has issued an ethics opinion that 
appearance before administrative agencies on behalf of corporations or 
associations must be by licensed attorneys. The ruling concerning 
representation at contested case hearings was in reference to contested 
case hearings held by the Board of Minerals and Environment. The 
requirement for representation by an attorney does not appear to apply 
to the NPDES program. However, even in the case of the Board of 
Minerals and Environment, the Board does not exclude individual 
citizens from full participation at hearings, but applies the 
requirement for legal representation of organizations.
    The DENR clarified in an addendum to the MOA regarding the NPDES 
program that individual members of the general public and nonprofit 
organizations shall not be required to be represented by attorneys in 
NPDES program contested case hearings to the extent allowed by the 
State Bar Association and the State Supreme Court. EPA believes that a 
state bar association does not have the authority to direct the 
policies and procedures of a state agency which derives its authority 
from the state legislature. EPA does recognize that a state bar 
association can constrain the activities of individual attorneys 
employed by a state agency. In its oversight role, EPA will monitor 
future rulings of the South Dakota Bar Association and the State 
Supreme Court regarding citizen intervention and whether environmental 
organizations are being required to be represented by attorneys. If 
either of these occur, EPA will consider the impact these rulings and 
requirements have on the viability of the State's NPDES enforcement 
program.
Conclusion
    EPA has determined that DENR intervention authority and procedures 
adequately meets the requirement of 40 CFR 123.27(d).

IV. Jurisdiction Over Indian Country

    As outlined in EPA's September 1, 1993 Federal Register and August 
27, 1993 newspaper notices, EPA withheld from NPDES program 
authorization consideration those lands which were in Indian Country or 
for which there was significant controversy over whether or not the 
land was Indian Country. As noted earlier, EPA provided copies of South 
Dakota's public notices to tribal councils and tribal environmental 
agencies. Tribal governments and affected permittees were also provided 
with copies of the list of permitted facilities which EPA would 
continue to administer.
    In withholding authorization for these areas, EPA was not making a 
determination as to whether or not South Dakota had adequate 
jurisdiction. This issue was considered deferred. Nevertheless, a 
number of comments were received regarding jurisdiction. No comments 
were received from tribal councils or tribal environmental 
organizations.

A. Comments Regarding EPA's Continued Administration of the NPDES 
Program in Indian Country

    One commenter, a member of the regulated community, stated that 
EPA's retaining authority within the identified Indian Reservations 
should lighten the load for SDDENR.
    A number of commenters however, disagreed with EPA's administering 
the program in Indian Country or land in controversy. Some of the 
comments were the following:
    ``* * * EPA is asserting a jurisdictional authority which it cannot 
for regulatory and resource reasons, carry out; the result is 
inconsistent environmental protection, and some geographical areas left 
without environmental protection * * * If EPA insists that it carve out 
geographical areas of the state which should not have equal 
environmental protection, then I want to make it very clear that the 
State of South Dakota will further pursue the issue of jurisdiction on 
non-Indian lands within reservation boundaries.''
    ``To the extent that EPA retains authority over facilities located 
on lands other than retained Indian allotments, we believe EPA violates 
the holding * * * [that] exclusive tribal and federal jurisdiction is 
limited to the retained allotments * * * We believe the better policy, 
at least as it applies to former reservation areas, is to grant the 
State authority unless the Tribe can show authority for the dischargers 
being within the exclusive jurisdiction of the Tribe or federal 
government.''
    ``We feel South Dakota has demonstrated its intent and ability to 
administer programs fairly in the entire state. Therefore, the SDDENR 
should administer the NPDES program throughout the State. The 
department will need to work closely with tribal governments. Splitting 
the non-Federal responsibilities could result in ineffective protection 
of the waters of the state.''
    A state agency expressed concern that the split in administering 
the program would cause confusion.

B. EPA's Response to Comments Regarding Jurisdiction Over Indian 
Country

    As noted in the public notice, EPA made the decision to withhold 
authorization to administer the NPDES program on ``Indian Country,'' as 
defined in 18 U.S.C. 1151, which includes lands inside reservation 
boundaries and trust lands found outside reservations. For the most 
part, these include nine Federal Indian reservations:

1. Cheyenne River Indian Reservation
2. Crow Creek Indian Reservation
3. Flandreau Indian Reservation
4. Lower Brule Indian Reservation
5. Pine Ridge Indian Reservation
6. Rosebud Indian Reservation (includes Todd County and portions of 
Millette and Gregory Counties)
7. Sisseton Indian Reservation
8. Standing Rock Indian Reservation
9. Yankton Indian Reservation.

    This issue was deferred until a satisfactory demonstration of 
jurisdiction over Indian Country is made by the State of South Dakota 
or another governmental entity. Otherwise, delegation of any part of 
the program would have to be held up pending a lengthy resolution of 
this complicated issue.
    While a number of comments were received regarding jurisdiction, 
this issue is deferred until such time as an appropriate analysis is 
made of the State's authority to assert jurisdiction over lands for 
which EPA is retaining jurisdiction. EPA will specifically mail copies 
of public notices of future assertions to those who provided comments, 
so they may make their comments during the appropriate public comment 
period.
    It should be noted that EPA has prepared a list of NPDES-permitted 
facilities which will continue to be administered by EPA. Operators or 
owners of facilities subject to the NPDES program which are located on 
these lands should continue to send original or renewal permit 
applications to EPA. They will be notified of this at the time all 
permittees are notified of the program authorization decision. Persons 
with questions as to whether their facilities may be in Indian Country 
are advised to consult with the Bureau of Indian Affairs and the EPA.

V. Pretreatment Program

    A state pretreatment program must meet the requirements of 40 CFR 
403.10(f) before being approved for program administration by the EPA. 
Under 40 CFR 403.10(f)(1)(i) and 403.3(j), an approved state program 
must have the authority to require industrial users to comply with 
pretreatment standards for specific industrial subcategories, as 
established by EPA regulations in 40 CFR, Chapter I, Subchapter N, 
``Effluent Guidelines and Standards.'' When South Dakota submitted its 
proposed program to EPA, subchapter N had not been incorporated into 
the State program. However, incorporation was approved at the July 28, 
1993, public hearing of South Dakota Water Management Board and became 
effective on September 5, 1993.

A. Comments Regarding the Pretreatment Program

    One commenter, a pretreatment program manager, expressed concerns 
and raised questions regarding the clarity of the pretreatment program 
procedures and the level of resources needed by the DENR to administer 
the pretreatment program:
    ``1. I feel DENR must elaborate and develop a procedure for 
entering into a joint powers agreement with a municipality in order for 
DENR to run a municipal pretreatment program. There is nothing in the 
submission that indicates the extent to which DENR will administer the 
program, especially if a large municipality requests the Department run 
their program.
    2. Does DENR have the authority to flatly refuse to administer a 
municipal pretreatment program?
    3. If DENR issues a SWD Permit to a POTW and mandates the 
development of a pretreatment program, can the POTW in turn request the 
State to administer the program? If so, what are the procedures for 
requesting that DENR administer the program?
    4. Assuming the State becomes delegated, what is the timeframe for 
previously approved pretreatment programs to submit notice to the DENR 
that the POTW wishes to continue administering the program?
    5. I honestly feel that if ONE of the larger POTW's [sic] request 
that DENR administer their pretreatment program, along with all of the 
other smaller POTW pretreatment responsibilities the state will assume, 
the Department will not have enough personnel to adequately administer 
this program.''
    A second commenter proposed that the following be added to the 
administrative rules:
    ``74:03:26--A POTW that intends to discharge wastewater to a 
separate POTW which is under a different authority must submit a 
request for approval to the Secretary at least 90 days prior to 
discharge. The Secretary must evaluate the impact of industrial user 
wastes on contributing POTW and receiving POTW.
    The Secretary may choose one of the following options to protect 
both POTWs from significant industrial user discharges:
    (1) Require contributing jurisdiction to establish a Pretreatment 
Program in accordance to [sic] the requirements in 40 CFR Part 403.8(a) 
and the State provide direct oversight over program.
    (2) State implement a POTW Pretreatment Program in lieu of the 
contributing jurisdiction as set forth in 40 CFR Part 403.8(e).
    (3) Control all significant industrial users in the contributing 
jurisdiction directly by conditions established in 74:03:26:03 to 
74:03:26:14 and the State of SD Pretreatment Program.''

B. EPA's Response to Comments

    ARSD Section 74:03:26:02 and Section V of the Program Description 
provide for development of a joint powers agreement in cases where a 
POTW required to develop a pretreatment program has requested the DENR 
to assume pretreatment program requirements. This request is to be made 
within 30 days of notification that the State has been delegated the 
pretreatment program or within 30 days of the facility being notified 
that it is required to develop a pretreatment program. In the latter 
case, this notification would be made either at the time of issuance of 
an NPDES permit with such a requirement or the conclusion of an 
enforcement action imposing such a requirement.
    EPA believes that any POTW can request that the State assume 
responsibility for a local pretreatment program, subject to 
implementation of an agreed-upon joint powers agreement. It appears 
that the DENR may refuse to administer a program only if no joint 
powers agreement is developed within forty-five days after notification 
of intent by the POTW.
    EPA agrees that the DENR should provide more detailed instructions 
to POTWs regarding the joint powers agreement process. This can be done 
at the time the POTW requests the DENR to administer its pretreatment 
program, since the procedures may vary somewhat depending on the extent 
and content of local legal authorities and procedures at each facility 
when the request is received.
    The DENR will be required upon authorization to supply whatever 
resources are necessary to ensure that all pretreatment program 
activities are fully implemented and enforced. DENR staff are 
knowledgeable about the resources required to implement a program. SDCL 
34A-2-120 provides for the DENR to collect annual fees from, not only 
the POTW for which it administers the pretreatment program ($35,000), 
but each pretreatment industrial user ($600 plus up to $1,600 per 
process line for analytical testing). These fees, plus any legislative 
appropriations, would be the financial basis for DENR administering the 
overall state pretreatment program and individual programs with which 
it has joint powers agreements.
    Regarding the proposed rule changes, EPA finds additional rules are 
not needed to provide the State the authority to require a POTW to 
develop a pretreatment program or to request that the DENR administer 
the program in lieu of the POTW. The State is not required to offer 
POTWs the option to develop or have programs developed at POTWs which 
do not meet the criteria contained in 40 CFR 403.8(a), as seems to be 
suggested by the second commenter's proposed rules.
Conclusion
    The pretreatment program described adequately meets the 
requirements of 40 CFR 403.10(f). The Program Description outlines the 
process for joint powers agreements. EPA recognizes that the specific 
steps for developing joint powers agreements between the DENR and an 
individual POTW may vary according to the situation at each 
municipality. EPA will continue to play a significant review and 
oversight role in the development and implementation of joint powers 
agreements.

VI. Endangered Species Act

    In our August 25, 1993 letter to the United States Fish and 
Wildlife Service (FWS), EPA initiated informal consultation under 
section 7 of the Endangered Species Act (ESA) on EPA's proposal to 
authorize the DENR to administer the NPDES Program under section 402 of 
the Clean Water Act in South Dakota. The FWS responded to EPA on 
October 20, 1993. EPA responded to that letter with a letter on 
November 19, 1993 describing permitting and variance procedures and 
providing a biological assessment of the impact of program 
authorization on endangered and threatened species in South Dakota 
delineated in the FWS October 20th letter. The November 19th letter 
also stated that EPA believed that the delegation would have no effect 
on the listed species. Responding in its November 30, 1993 letter to 
the EPA, the FWS indicated that it could concur with our no adverse 
effect finding if EPA agreed to four conditions.
    EPA and DENR staff met with staff at the FWS South Dakota Field 
Office in Pierre to discuss the conditions. Based on that meeting, the 
EPA and DENR agreed to these conditions, as follows. FWS concurred on 
EPA's Finding of No Adverse Affect on December 15, 1993. The MOA 
between EPA and South Dakota on the administration of the South Dakota 
NPDES program addressed these conditions.
    1. In each individual public notice or variance, the State shall 
make an initial determination of effect on all federally listed 
endangered and threatened species that may occur in the project area of 
influence.
     This information will be provided to the Service as well 
as to the EPA with sufficient time to review and, if necessary, provide 
comments, as reflected in the Memorandum of Agreement signed between 
EPA and the State of South Dakota.
     The State will communicate with the Service, on a periodic 
basis, on the permits that it will be issuing. The Service will work 
with the State to identify those permits for which there are species in 
the project area.
    2. If it is determined by the State that the individual permit or 
variance to the permit provided to the Service may adversely affect any 
federally listed and/or proposed endangered and threatened species, the 
State will work with the Service to eliminate the adverse affect.
    3. If the Service does not concur with the State's ``no affect'' 
determination, the State will work with the Service to eliminate the 
adverse effect.
    4. If any adverse effects cannot be eliminated, the permit 
application or variance will be held in abeyance and the EPA, with 
their oversight responsibilities, will require consultation with the 
Service, after EPA has completed the formal objection process and the 
permit has reverted to EPA for issuance.

A. Comments Concerning Information Needed and the Consultation Process

    One environmental organization urged EPA to engage in formal 
consultation with the FWS pursuant to Section 7 of the Endangered 
Species Act. Another environmental group questioned whether EPA had 
complied with requirements to consult with the FWS and with the State 
Game, Fish, and Parks Department.

B. EPA's Response to Comments

    The EPA successfully completed informal consultation with the U.S. 
Fish & Wildlife Service, as described above. Therefore, there was no 
need to engage in the formal consultation process.

VII. Overall Delegation Issues

    EPA received a number of public comments regarding the overall 
capability and intent of the DENR to administer an authorized NPDES 
program.

A. Comments Regarding the Benefits of Delegation

    1. Many commenters praised the capabilities, competency, knowledge, 
and past performance of the DENR staff.
    ``* * * we have relied on the South Dakota Department of 
Environment and Natural resources as a resource for questions and 
concerns we have had with the NPDES program. We have found the DENR to 
be staffed by a group of well-informed professionals dedicated to the 
enhancement of water quality. Their guidance and advice have always 
been valuable * * *.''
    ``The DENR has established itself as a very competent department 
and has a very positive working relationship with a variety of 
industries within the state. The DENR will be very effective in 
administering and enforcing the NPDES program for the State of South 
Dakota * * * we haven't always agreed with DENR on our positions, but 
let me say clearly we have always been treated very fairly.'' ``To me, 
the State seems very capable of making decisions and taking action, 
while at the Federal level, response does not occur with promptness.''
    ``We are aware of the efforts the Department made prior to and 
during the 1992 State Legislative session to secure funding needed to 
upgrade staff capability to take over management of the NPDES 
program.''
    ``* * * environmental regulations are best administered at the 
state level. State administration provides both the permittee and the 
regulator better opportunity for face to face communication and for 
better understanding of the specifics of an operation through regular 
inspections. Administration and enforcement are both enhanced by having 
the regulators in close proximity to the regulated facilities.''
    2. Numerous commenters emphasized the advantages of regulation by 
an agency actually in the State. Comments included the following:
    ``EPA technical staff are normally available by phone only, while 
state staff are frequent visitors to the area and are available for 
valuable on-site assistance * * *. Our experience in working with [a 
delegated state regarding other facilities] has been one where positive 
environmental benefits have been achieved in an efficient, timely 
manner. We deal directly and in person with all the regulatory people 
involved, which drastically reduces the questions of interpretation, 
improves timeliness of permit compliance and in the end provides 
quicker, effective solutions to environmental problems.''
    ``I believe that delegation of the NPDES program for regulating the 
discharges of pollutants into waters within the State will mean a more 
effective operation on both a programmatic and cost basis.''
    ``We are as concerned for the environment of our employees as much 
as anyone else is, but we have a desire for cooperation rather than 
dictation.''
    ``I believe a program administered by the state of South Dakota, 
with regional offices in efforts to help industry clean up our 
environment, should we be polluting it, would be a tremendous benefit 
to all manufacturers.''
    ``Having the answers in state and accountable to South Dakotans 
will enhance businesses' ability to comply.''
    ``[The State Feedlot Program Regulation Review] * * *. Committee 
concluded that State management of the NPDES program was needed to 
accomplish effective regulation of feedlot wastes in South Dakota.''
    ``The National Performance Review recently cited recommendations to 
create a system of program delivery that works better and costs less. 
The very first recommendation (EPA01) specifically states: `Improve 
Environmental Protection Through Increased Flexibility for Local 
Government'. The United States Environmental Protection Agency has a 
real opportunity today to act on this recommendation by approving South 
Dakota's application!''
    ``There are several reasons why the Legislature supported this 
[Second Century Environmental Protection] Act:

--State administration of the federal program would enhance economic 
development;
--Improved coordination would exist between local and state 
governmental agencies; and
--The state would better safeguard the public health, safety, welfare 
and the environment of this state through a customer service 
approach.''

B. Comments Opposing Authorization

    A number of commenters identified problems associated with 
delegation, both in public participation issues and in other areas:
    ``If [program authorization] were to happen, South Dakota citizens, 
although they might not know it, would be without protection.''
    ``DENR's activities last year demonstrate clearly the agency's 
tendency toward advocacy for, rather than regulation of, the entities 
it is, by law, required to oversee * * *. [This group] seeks denial of 
state delegation until the philosophy of DENR changes from that of 
advocate for the regulated community to one of regulator.'' An 
environmental group criticized the state's commitment to enforcement. 
An environmental group requested that EPA require monitoring data to be 
submitted and housed at DENR. They also suggested that issued and 
denied permits require equivalent levels of clearances.

C. EPA's Response to Comments on Overall Authorization Issues

    EPA noted and considered all public comments considering the 
overall advantages and disadvantages of approving the NPDES program 
administration by the State of South Dakota.
    Many of the comments reflected the advantage of State program 
approval which the Clean Water Act envisioned: the program can be 
administered more effectively closer to the regulated community when 
the agency and its staff are competent and committed to protecting the 
environment and public health.
    Resources to be used meet the minimum requirements of the NPDES 
program as it now exists. The State would be responsible for devoting 
the resources needed to maintain this program and implement additional 
requirements, as they occur.
    EPA's responses to public participation issues are found under the 
sections on ``Unsigned Complaints'' and ``Citizen Intervention''.
    EPA typically does not require submission of monitoring data other 
than discharge monitoring reports (DMRs) when it administers the NPDES 
program in a state. Therefore, it does not require an approved state to 
do so.
    It appears that there are equivalent levels of clearance for permit 
issuance and denial. In both cases, the Secretary makes that decision. 
This is noted in the flow chart on page 9 of the Program Description.

Conclusion

    The State of South Dakota has demonstrated that it adequately meets 
the requirements for program authorization as defined in the Clean 
Water Act, 40 CFR part 123, and 40 CFR part 403. The U.S. Fish & 
Wildlife Service concurred with the EPA ``no adverse affect'' 
determination regarding program authorization. The State Historic 
Preservation Office concurred with the EPA ``no effect'' determination. 
This authorization does not include the sludge management program.
    At this time, EPA is withholding authorization to administer the 
NPDES program on Indian Country located within South Dakota, including 
lands for which there is significant controversy over whether or not 
the land is Indian Country.

Federal Register Notice of Approval of State NPDES Programs or 
Modifications

    EPA must provide Federal Register notice of any action by the 
Agency approving or modifying a State NPDES program. The following 
table will provide the public with an up-to-date list of the status of 
NPDES permitting authority throughout the country. Today's Federal 
Register notice is to announce the approval of South Dakota's authority 
to administer the NPDES permit program, including regulation of federal 
facilities and issuance of general permits and to administer the 
pretreatment program.

                                           State NPDES Program Status                                           
----------------------------------------------------------------------------------------------------------------
                                                               Approved   Approved to    Approved      Approved 
                                                             State NPDES    regulate       State       general  
                                                                permit      federal    pretreatment    permits  
                                                               program     facilities     program      program  
----------------------------------------------------------------------------------------------------------------
Alabama....................................................     10/19/79     10/19/79      10/19/79     06/26/91
Arkansas...................................................     11/01/86     11/01/86      11/01/86     11/01/86
California.................................................     05/14/73     05/05/78      09/22/89     09/22/89
Colorado...................................................     03/27/75  ...........  ............     03/04/83
Connecticut................................................     09/26/73     01/09/89      06/03/81     03/10/92
Delaware...................................................     04/01/74  ...........  ............     10/23/92
Georgia....................................................     06/28/74     12/08/80      03/12/81     01/28/91
Hawaii.....................................................     11/28/74     06/01/79      08/12/83     09/30/91
Illinois...................................................     10/23/77     09/20/79  ............     01/04/84
Indiana....................................................     01/01/75     12/09/78  ............     04/02/91
Iowa.......................................................     08/10/78     08/10/78      06/03/81     08/12/92
Kansas.....................................................     06/28/74     08/28/85  ............     11/24/93
Kentucky...................................................     09/30/83     09/30/83      09/30/83     09/30/83
Maryland...................................................     09/05/74     11/10/87      09/30/85     09/30/91
Michigan...................................................     10/17/73     12/09/78      04/16/85     11/29/93
Minnesota..................................................     06/30/74     12/09/78      07/16/79     12/15/87
Mississippi................................................     05/01/74     01/28/83      05/13/82     09/27/91
Missouri...................................................     10/30/74     06/26/79      06/03/81     12/12/85
Montana....................................................     06/10/74     06/23/81  ............     04/29/83
Nebraska...................................................     06/12/74     11/02/79      09/07/84     07/20/89
Nevada.....................................................     09/19/75     08/31/78  ............     07/27/92
New Jersey.................................................     04/13/82     04/13/82      04/13/82     04/13/82
New York...................................................     10/28/75     06/13/80  ............     10/15/92
North Carolina.............................................     10/19/75     09/28/84      06/14/82     09/06/91
North Dakota...............................................     06/13/75     01/22/90  ............     01/22/90
Ohio.......................................................     03/11/74     01/28/83      07/27/83     08/17/92
Oregon.....................................................     09/26/73     03/02/79      03/12/81     02/23/82
Pennsylvania...............................................     06/30/78     06/30/78  ............     08/02/91
Rhode Island...............................................     99/17/84     09/17/84      09/17/84     09/17/84
South Carolina.............................................     06/10/75     09/26/80      04/09/82     09/03/92
South Dakota...............................................     12/30/93     12/30/93      12/30/93     12/30/93
Tennessee..................................................     12/28/77     09/30/86      08/10/83     04/18/91
Utah.......................................................     07/07/87     07/07/87      07/07/87     07/07/87
Vermont....................................................     03/11/74  ...........      03/16/82     08/26/93
Virgin Islands.............................................     06/30/76  ...........  ............  ...........
Virginia...................................................     03/31/75     02/09/82      04/14/89     05/20/91
Washington.................................................     11/14/73  ...........      09/30/86     09/26/89
West Virginia..............................................     05/10/82     05/10/82      05/10/82     05/10/82
Wisconsin..................................................     02/04/74     11/26/79      12/24/80     12/19/86
Wyoming....................................................     01/30/75     05/18/81  ............     09/24/91
                                                                                                                
      Totals...............................................           40           35            28           39
----------------------------------------------------------------------------------------------------------------


Number of Fully Authorized Programs (Federal Facilities, Pretreatment, 
General Permits)=26

Review Under Regulatory Flexibility Act and Executive Order 12866

    Under the Regulatory Flexibility Act, EPA is required to prepare a 
Regulatory Flexibility Analysis for all rules that may have a 
significant impact on a substantial number of entities. The proposed 
approval of the South Dakota NPDES program does not alter the 
regulatory control over any industrial category. No new substantive 
requirements are established by this action. Therefore, because this 
notice does not have a significant impact on a substantial number of 
small entities, a Regulatory Flexibility Analysis is not needed.
    On October 12, 1993, the Office of Management and Budget exempted 
this Agency action from the requirements of Executive Order 12866.

    Dated: December 30, 1993.
Jack W. McGraw,
Acting Regional Administrator, Environmental Protection Agency, Region 
VIII.
[FR Doc. 94-493 Filed 1-10-94; 8:45 am]
BILLING CODE 6560-50-P