[Federal Register Volume 61, Number 169 (Thursday, August 29, 1996)]
[Notices]
[Pages 45420-45426]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21944]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-5601-9]


State Program Requirements; Application To Administer the 
National Pollutant Discharge Elimination System (NPDES) Program; 
Oklahoma

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed approval of the Oklahoma Pollutant Discharge 
Elimination System.

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SUMMARY: The State of Oklahoma has submitted a request for approval of 
the Oklahoma Pollutant Discharge Elimination System (OPDES) Program 
pursuant to Section 402 of the Clean Water Act. If EPA approves the 
OPDES program, the Oklahoma Department of Environmental Quality (ODEQ) 
will administer that program in lieu of the National Pollutant 
Discharge Elimination System (NPDES) program now administered by EPA in 
Oklahoma. Today, EPA proposes to approve the State's request and 
provides notice of a public hearing and comment period on that 
proposal. EPA will either approve or disapprove the State's request 
after considering all comments it receives.

DATES: EPA Region 6 will hold a public hearing on September 30, 1996 
beginning at 7:00 p.m. for submission of verbal or written comments on 
EPA's program approval proposal. A public discussion for questions and 
answers will be held prior to the hearing from 3:00 p.m. until 5:00 
p.m. To ensure issues brought up during the meeting from 3:00 to 5:00 
are considered in EPA's decision, they should be made in writing to 
EPA, or on record during the public hearing later that evening. EPA 
Region 6 will continue to accept written comments through October 21, 
1996 at its office in Dallas, Texas. Copies of such written comments 
should also be provided to ODEQ.

ADDRESSES: The September 30, 1996, public hearing will be held at the 
Tom Sneed Career Development Center Auditorium, Rose State College, I-
40 and Hudiburg Drive at Exit 156B, Midwest City, Oklahoma. Specific 
directions will be posted at the ODEQ headquarters building located at 
1000 N.E. 10th, Oklahoma City, Oklahoma.
    Written comments must be submitted to: Ms. Ellen Caldwell (6WQ-O), 
Water Quality Protection Division, EPA Region 6, 1445 Ross Avenue, 
Dallas, Texas 75202.
    A copy of each comment should be submitted to: Norma Aldridge, 
Department of Environmental Quality,

[[Page 45421]]

Water Quality Division, 1000 N.E. 10th Street, Oklahoma City, Oklahoma 
73117-1212.
    Copies of documents Oklahoma has submitted in support of its 
program approval request may be reviewed during normal business hours, 
Monday through Friday, excluding holidays, at:

EPA Region 6, 12th Floor Library, 1446 Ross Avenue, Dallas, Texas 
75202, (214) 665-7513
ODEQ Headquarters, Department of Environmental Quality, Water Quality 
Division, 1000 N.E. 10th Street, Oklahoma City, Oklahoma 73117-1212.

    The documents are also available to the public at the following 
libraries:

1. Tulsa City/County Library, 400 Civic Center, Tulsa, Oklahoma 74103
2. Woodward Public Library, 1500 N. Main, Woodward, Oklahoma 73801
3. McAlester Public Library, 401 N. 2nd Street, McAlester, Oklahoma 
74501
4. Lawton Public Library, 110 S.W. 4th Street, Lawton, Oklahoma 73501.

FOR FURTHER INFORMATION CONTACT: Ms. Ellen Caldwell at the EPA address 
listed above or by calling (214) 665-7513 or Norma Aldridge at the ODEQ 
address listed above or by calling (405) 271-5205 ext 134.
    Part or all of the State's submission (which comprises 
approximately 2391 pages) may be copied at the ODEQ office in Oklahoma 
City, or EPA office in Dallas, at a minimal cost per page. A paper copy 
of the entire submission may be obtained from the ODEQ office in 
Oklahoma City for a $358.65 fee (The cost of the principal documents, 
i.e., the Attorney General's Statement, Memorandum of Agreement, 
Program Description, and the Enforcement Management System all without 
their associated appendices is $163.35). An electronic copy of the 
documents stored on computer disk will be provided at no cost to 
interested parties which supply a disk to ODEQ for that purpose. The 
disk must be a new, 3.5'' high density/double sided microdisk. The 
documents will be copied to the disk in WordPerfect 6.0.

SUPPLEMENTARY INFORMATION: Section 402 of the Clean Water Act (Act) 
created the NPDES program under which EPA may issue permits for the 
point source discharge of pollutants to waters of the United States 
under conditions required by the Act. Section 402 also provides that 
EPA may authorize a State to administer an equivalent state program 
upon a showing the State has authority and a program sufficient to meet 
the Act's requirements.
    The basic requirements for state program approval are listed in 40 
CFR Part 123. EPA Region 6 considers the documents submitted by the 
State of Oklahoma complete at the time of this notice and believes they 
comply with the regulations found at 40 CFR 123. It thus proposes to 
approve the OPDES program as described by the Oklahoma Department of 
Environmental Quality. EPA will consider final approval after all 
public comments have been considered.
    On June 10, 1996, the Governor of Oklahoma requested NPDES partial 
program approval and submitted a program description (including 
funding, personnel requirements and organization, and enforcement 
procedures), an Attorney General's statement, copies of applicable 
State statutes and regulations, and a Memorandum of Agreement (MOA) to 
be executed by the Regional Administrator of EPA Region 6 and the 
Executive Director of ODEQ. As a result of discussions between EPA and 
ODEQ staff, changes and additions have been made to some of those 
documents to include regulatory and statutory corrections in the 
program. The additional information was received by EPA on August 14, 
1996, and a letter of completeness was sent to the Executive Director 
of ODEQ on August 22, 1996.
    EPA's Regional Administrator is required to approve the submitted 
program within 90 days of submission of the complete information unless 
it does not meet the requirements of section 402(b) of the Act and EPA 
regulations. To obtain such approval, the State must show, among other 
things, that it has authority to issue permits which comply with the 
Act, authority to impose civil and criminal penalties for permit 
violations, and authority to ensure that the public is given notice and 
opportunity for a hearing on each proposed permit. After close of the 
comment period, EPA's Regional Administrator will decide to approve or 
disapprove the OPDES program for implementation in lieu of the federal 
NPDES program.
    EPA's final decision to approve or disapprove the OPDES program 
will be based on the requirements of section 402 of the CWA and 40 CFR 
Part 123. If she approves the Oklahoma partial program, the Regional 
Administrator will so notify the State. Notice will be published in the 
Federal Register and, as of the date of program approval, EPA will 
suspend issuance of NPDES permits in Oklahoma [except for those 
discharges which are not under the jurisdiction of ODEQ, see Scope and 
Summary of the OPDES Permitting Program below]. The State's OPDES 
program will implement federal law and operate in lieu of the EPA-
administered NPDES program for those discharges for which ODEQ has 
authority. EPA will, however, retain the right to object to OPDES 
permits proposed by ODEQ, and if the objections are not resolved, issue 
the permit itself. If EPA's Regional Administrator disapproves the 
OPDES program, she will notify ODEQ of the reasons for disapproval and 
of any revisions or modification to the program which are necessary to 
obtain approval.

PUBLIC HEARING PROCEDURES: The following procedures will be used at the 
September 30, 1996 public hearing:
    1. The Presiding Officer shall conduct the hearing in a manner 
which will allow all interested persons wishing to make oral statements 
an opportunity to do so; however, the Presiding Officer may inform 
attendees of any time limits during the opening statement of the 
hearings.
    2. Any person may submit written statements or documents for the 
record.
    3. The Presiding Officer may, in his discretion, exclude oral 
testimony if such testimony is overly repetitious of previous testimony 
or is not relevant to the decision to approve or require revision of 
the submitted State program.
    4. The transcript taken at the hearing, together with copies of all 
submitted statements and documents, shall become a part of the record 
submitted to the Regional Administrator.
    5. The hearing record shall be left open until the deadline for 
receipt of comments specified at the beginning of this Notice to allow 
any person time to submit additional written statement or to present 
views or evidence tending to rebut testimony presented at the public 
hearing.
    Hearing statements may be oral or written. Written copies of oral 
statements are urged for accuracy of the record and for use of the 
Hearing Panel and other interested persons. Statements should summarize 
any extensive written materials. All comments received by EPA Region 6 
by the deadline for receipt of comments, or presented at the public 
hearing, will be considered by EPA before taking final action on the 
Oklahoma request for NPDES program approval.

Scope and Summary of the Oklahoma Pollution Discharge Elimination 
System (OPDES) Permitting Program

 A. Scope

    1. Partial Program: Oklahoma's OPDES program is a partial program 
which conforms to the requirements of section 402(n) of the Clean Water 
Act. The program application submitted by ODEQ applies to all 
discharges covered

[[Page 45422]]

by the authority of that agency. This includes most discharges of 
pollutants subject to the federal NPDES program (e.g. municipal 
wastewater discharges, pretreatment, and most industrial point source 
discharges, and point source discharges from federal facilities), 
including the disposal of sewage sludge (in accordance with Section 405 
of the Act and 40 C.F.R. Part 503). ODEQ does not have regulatory 
authority over the following classes of facilities or discharges in the 
State of Oklahoma:
    (a) Agricultural industries including concentrated animal feeding 
operations and silviculture. The Oklahoma Department of Agriculture is 
the state authority for point and nonpoint source discharges associated 
with agricultural production, services, silviculture, feed yards, 
livestock markets and animal wastes. The Department of Agriculture has 
not yet applied to EPA for authorization of their program, therefore, 
EPA will retain NPDES authority over these facilities and their 
discharges.
    (b) Oil and Gas exploration and production related industries and 
pipeline operations outside the boundries of facilities regulated by 
ODEQ. The Oklahoma Corporation Commission is the state authority 
regulating the oil and gas exploration and production related 
industries and their associated discharges. The Corporation Commission 
has not yet applied to EPA for authorization of their state program, 
therefore, EPA will retain NPDES authority over these industries and 
their discharges to surface waters of the state.
    (c) Discharges in Indian Country. The State of Oklahoma does not 
seek jurisdiction over Indian Country. EPA will retain NPDES authority 
to regulate discharges in Indian Country (as defined in 18 W.S.C. 
1151). Although State regulation 252:605-1-3(c) seems to assert that 
the OPDES program has the authority to regulate discharges on ``Indian 
Lands,'' it is contrary to the intent of the State as described in the 
EPA/ODEQ MOA and the Oklahoma Attorney General's Statement. The State 
of Oklahoma has undertaken steps to revise the regulation clarifying 
ODEQ does not seek to issue authorized OPDES permits to discharges in 
Indian Country. EPA and ODEQ will work together with tribal authorities 
to resolve questions of permitting authority for individual discharges. 
Although EPA would be the issuing authority for permits in Indian 
Country, it is likely that Region 6 would work with ODEQ and the 
appropriate tribes in the development of these permits to insure that 
both tribal and state waters are protected in a way consistent with the 
requirements of the CWA.
    (d) Discharges of radioactive materials regulated by the federal 
government (i.e. those radioactive materials covered by the Atomic 
Energy Act of 1954, as amended (42 U.S.C. 2011 et seq.)). The State's 
definition of ``pollutant'' does not exclude by reference radioactive 
materials regulated by other federal authorities. EPA does not have the 
authority to authorize the OPDES program to regulate radioactive wastes 
governed by the Atomic Energy Act. The regulatory authority for 
radioactive materials will remain under the jurisdiction of the U.S. 
Department of Energy and the Nuclear Regulatory Commission. Some 
industrial discharges which contain very low level radioactive wastes 
(e.g. manufacturers of watches may discharge trace amounts of radium, 
and hospital wastes sometimes contain iodine isotopes) which are not 
included in the Atomic Energy Act and are thus regulated by EPA; upon 
authorization of the OPDES program, the authority to regulate those 
discharges will become the responsibility of ODEQ.
    (e) Oklahoma Ordinance Works Authority (OOWA). EPA will retain 
enforcement authority for OOWA (NPDES permit No. OK0034568), located in 
Pryor, Oklahoma, and all industries served by this facility. ODEQ is 
legally responsible for implementing the pretreatment program at OOWA.
    2. Phased Program Authority: The State of Oklahoma, to ensure that 
the Oklahoma general permitting program is consistent with the 
requirements of 40 CFR 123.25(c), is revising its statutes and 
regulations to provide the Executive Director of the Oklahoma 
Department of Environmental Quality with the full authority to issue 
general permits under the OPDES system. Until the state completes this 
transfer of authority, EPA will retain full permitting and enforcement 
authority for those discharges which are covered, or proposed to be 
covered by EPA issued general permits. This will prevent the state from 
becoming overburdened with the permitting of these facilities via 
individual permits. Once the state has completed its regulatory and 
statutory changes to ensure their general permitting authority complies 
with 40 CFR 123.25(c), EPA will turn over all authority for these 
discharges to ODEQ. EPA will also transfer its general permits to ODEQ 
for administration. This phased authority will be transferred to the 
state no later than three years after authorization of the program.
    a. EPA will be temporarily retaining NPDES authority for:
    i. All existing discharges of storm water associated with 
industrial or construction activity (40 CFR 122.26(b)(14)), including 
allowable non-storm water, authorized to discharge under an NPDES storm 
water general permit as of the date of program assumption. The storm 
water general permits affected are: Baseline construction storm water 
general permit (57 FR 41209), NPDES permit numbers OKR10*###; Baseline 
non-construction storm water general permit (57 FR 41297), NPDES permit 
numbers OKR00*###; and Multi-sector storm water general permit (60 FR 
51108), NPDES permit numbers OKR05*###. (For an individual facility's 
permit number, the * is a letter and the #'s are numbers--e.g. 
OKR00Z999).
    ii. New discharges of storm water associated with industrial or 
construction activity, including allowable non-storm water, eligible 
for coverage under one of the NPDES storm water general permits listed 
above, excluding new discharges subject to a new source performance 
standard. ODEQ will have authority for new discharges subject to a new 
source performance standard and these discharges will require an OPDES 
permit. Since the excluded facilities will be applying for a State-
issued permit, the new source review requirements of the National 
Environmental Policy Act (NEPA) will not apply. [NOTE: Phased authority 
does not apply to discharges from municipal separate storm sewers 
systems (MS4s, e.g., Oklahoma City and Tulsa); individual storm water 
permits or outfalls in waste water permits; and storm water discharges 
designated by the State in accordance with 40 CFR 123.26(g)(1)(I). The 
state will have authority over these discharges immediately upon 
authorization.]
    iii. All existing and new discharges resulting from implementing 
corrective action plans, as required by 40 CFR 280, for cleanup of 
groundwater contaminated by releases from Petroleum Underground Storage 
Tank Systems (UST). A Petroleum UST System is defined in 40 CFR 280 as 
an underground storage tank system that contains petroleum or a mixture 
of petroleum with de minimis quantities of other regulated substances. 
Such systems include those containing motor fuels, jet fuels, 
distillate fuel oils, residual fuel oils, lubricants, petroleum 
solvents, and used oils.
    iv. Discharges from Petroleum Bulk Storage Tanks (PST). To EPA's 
and ODEQ's knowledge, all discharges

[[Page 45423]]

authorized by EPA's PST general permit are regulated by the Oklahoma 
Corporation Commission. Neither EPA nor ODEQ are aware of any discharge 
points covered under EPA's PST general permit which are also located at 
facilities regulated by ODEQ. However, if it is determined that a 
permittee regulated by ODEQ has coverage under this EPA general permit, 
those discharges would be issued individual permits by ODEQ when the 
facility permit was modified, issued or reissued. So as not to leave 
the discharges from the PST without NPDES authorization, EPA and ODEQ 
would transfer authority over these discharges in the manner described 
in A.2. b. (below) at the time ODEQ public noticed the permitting 
action.
    A list of existing permittees under the general permits and thus 
remaining under EPA permitting authority is included as part of the 
public record and available for review. Facilities eligible for but not 
currently covered by one of these general permits may continue to apply 
to EPA for coverage. [Note: Oklahoma will continue to provide state-
only permits for those dischargers which are to be phased over to ODEQ, 
and which need state authorization to discharge.]
    b. Case-by-case transfers of NPDES authority for individual storm 
water, UST, and certain PST dischargers. From time to time, it may be 
desirable from an environmental or administrative standpoint to 
transfer authority, for an individual facility with EPA NPDES general 
permit coverage, prior to the time the State has received authority to 
issue general permits. Case-by-case transfers of NPDES authority for 
individual storm water, UST, and certain PST dischargers will be made 
using the following procedures:
    i. ODEQ may request early transfer of NPDES authority over an 
individual facility or a class of storm water dischargers at any time. 
All requests will be in writing and will include a brief rationale.
    ii. For those categories of industrial waste water and storm water 
which EPA has retained temporary authority, and may not be eligible for 
coverage under an EPA general permit, the permittee may petition ODEQ 
to request early transfer of NPDES authority so the facility discharges 
may be covered by an individual OPDES permit. The applicant must send a 
written request for transfer of authority to ODEQ. If the applicant's 
request is approved, ODEQ will request transfer of authority as 
specified above.
    iii. If ODEQ and EPA agree to early transfer of NPDES authority for 
a facility, the State will include outfalls for the affected discharges 
in a draft OPDES permit and the public notice of the draft permit will 
concurrently notice the transfer of authority for the facility's 
discharges to ODEQ.
    c. Final transfer of complete authority over EPA general permits. 
Ultimately, transfer of complete NPDES authority for storm water, UST, 
and certain PST discharges will be made using the following procedures:
    i. Within three years from the date of program assumption, the 
State will make the necessary changes to State statutes in order to 
qualify for general permitting authority.
    ii. Within 90 days of the effective date of the new statutes, the 
State will submit a supplemental Attorney General's statement, along 
with a copy of the relevant statutes, certifying that the Executive 
Director has the authority to issue general permits.
    iii. If EPA concurs with the Attorney General's statement, the 
Agency will publish notice of the transfer of authority for all 
remaining storm water, UST, and specific PST discharges to ODEQ and 
send a copy to the appropriate mailing list.
    iv. Once the Executive Director of ODEQ assumes authority in 
accordance with a promulgated final rule to issue general permits, the 
State will become the permitting authority (subject to EPA oversight) 
for all discharges of storm water associated with industrial and 
construction activity, UST remediation discharges, and PST discharges 
which fall under ODEQ's authority. The EPA storm water general permits 
and any effective general permits for UST remediation discharges will 
then be transferred to ODEQ for administration. Within 30 days of the 
transfer of authority, EPA will provide ODEQ with a list of all 
facilities authorized to discharge under these general permits.
    3. Transfer of NPDES Authority and Pending Actions: Upon approval 
of the Oklahoma program, authority for all NPDES Permit and Enforcement 
activities (within the scope of ODEQ's authority) will be transferred 
to the State with the following exceptions: a) Permits for facilities 
whose permits are proposed but not final. The permit authority will be 
transferred to the state as the permits are finalized. b) Permits for 
which there is an unresolved evidentiary hearing request. Once a 
hearing has been denied or is held and the issue resolved, the permit 
will be transferred to the state. c) Enforcement authority for those 
facilities which have any outstanding compliance issues. EPA will 
retain jurisdiction of these facilities until resolution of these 
issues is accomplished in cooperation with the State. Files retained by 
EPA for the reasons given above will be transferred to the state as the 
actions are finalized. Facilities will be notified of this retained 
jurisdiction and again when the file is transferred to the State.

B. Summary of the Application Documents

    The OPDES program is fully described in documents the State has 
submitted in accordance with 40 CFR 123.21, i.e., a Memorandum of 
Agreement (MOA) for execution by ODEQ and EPA; a Program Description, 
including an Enforcement Management System, outlining the procedures, 
personnel and protocols that will be relied on to run the state's 
permitting and enforcement programs; a Statement signed by the Attorney 
General that describes the legal authority which the state has adopted 
to administer a program equivalent to the federal NPDES program; and 
several agreements under which ODEQ will coordinate with the State 
Historic Preservation Officer and the U.S. Fish and Wildlife Service 
for the protection of antiquities and endangered species. The content 
of those documents is summarized below.
    1. The EPA/ODEQ MOA: The requirements for MOAs are found in 40 CFR 
123.24. A Memorandum of Agreement is a document signed by each agency, 
committing them to specific responsibilities relevant to the 
administration and enforcement of the state's regulatory program. A MOA 
specifies these responsibilities and provides structure for the State's 
program management and EPA's program oversight.
    The MOA submitted by the State of Oklahoma has been signed by Mark 
Coleman, Executive Director of the Department of Environmental Quality. 
The Regional Administrator of U.S. EPA Region 6 will sign the document 
after the program has been determined approvable and all comments 
received during the comment period (including comments received at the 
public hearing) have been considered. The MOA submitted by ODEQ 
includes the following items:
    Section I--Introduction: This section contains the statement of 
scope of the NPDES program (pretreatment, storm water, sewage sludge 
disposal programs) and contains general statements describing the 
purpose of the MOA.
    Section II--General Responsibilities: Describes, in general terms, 
the relative responsibilities regarding administration of the State 
program and EPA regarding oversight of the state program.

[[Page 45424]]

    Section III--Program Responsibilities: Lists the responsibilities 
of ODEQ and EPA in maintaining an effective program. Also outlines the 
procedures for phased authority over general permit discharges, and 
gives timing for the transition.
    Section IV--Permit Review and Issuance: Describes all agreements on 
the review and issuance of OPDES permits. It covers ODEQ's 
responsibilities to issue permits, the transfer of EPA files to the 
State, and the State's application review and permit development 
process. Included are such things as procedures for permit modification 
or reissuance, and EPA's review of OPDES drafted individual and general 
permits. This section includes the State's commitment for responding to 
public concerns and providing public participation in connection with 
public hearings, evidentiary hearings, and administrative and judicial 
enforcement actions.
    Section V--Enforcement: Describes summary agreements between EPA 
and ODEQ that provide EPA with oversight of the OPDES enforcement 
program. These include those commitments on ODEQ's compliance 
monitoring, reviews, pretreatment audits, and inspections. ODEQ agrees 
to take penalty actions in accordance with the spirit of the EPA 
Penalty Policy.
    Section VI--Reporting and Transmittal of Information: This section 
describes how reports and requests for information will be handled; and 
how information is transferred between the two agencies.
    Section VII--Program Review: Explains how EPA must review the OPDES 
program.
    Section VIII--Computation of Time: This section explains how time 
is computed with relation to the effective date of the MOA and non-
business days.
    Section IX--Modification to this MOA: Describes how the MOA can be 
modified by EPA and ODEQ.
    Section X--Public Access to Information: Provides that all 
information (except that which is legally determined to be 
confidential) must be available to the public by both ODEQ and EPA.
    Section XI--Independent EPA Powers: Explains that the MOA does not 
limit EPA's authority to take action under the Clean Water Act.
    Section XII--Incorporation By Reference: Allows DEQ to adopt 
federal standards by reference.
    Section XIII--MOA Effective: The MOA becomes effective when the EPA 
Regional Administrator signs the document.
    2. Program Description: A program description submitted by a state 
seeking program approval must meet the minimum requirements of 40 CFR 
123.22. It must provide a narrative description of the scope, 
structure, coverage and processes of the state program; a description 
of the organization, staffing and position descriptions for the lead 
state agency; and itemized costs and funding sources for the program. 
It must describe all applicable state procedures (including 
administrative procedures for the issuance of permits and 
administrative or judicial procedures for their review) and include 
copies of forms used in the program. It must further contain a complete 
description of the State's compliance and enforcement tracking program. 
The program description submitted by ODEQ includes the following items:
    Chapter 1--Scope and Authority of the DEQ Program: This chapter 
describes the authority (statutes and rules) for the state program and 
the scope. In particular, it provides a description of the authority 
over sewage sludge, pretreatment and storm water programs.
    Chapter 2--Organization, Structure and Responsibilities: This 
chapter gives an overview of the Water Quality Division, other 
Divisions within DEQ; and OPDES staff job descriptions.
    Chapter 3--Cost Estimates and Funding of the Oklahoma Delegations 
Program: This chapter gives a budget summary on programs's projected 
finances and funding sources for the program.
    Chapter 4--Permitting Procedures: Describes how ODEQ staff will 
develop effluent limitations, the permitting process, and the process 
for determining Total Maximum Daily Load of a surface water.
    Chapter 5--Public Participation: This chapter describes the 
procedures governing public involvement in ODEQ decision making. This 
includes rulemaking, public forums and meetings, the permitting 
process, development and updating the Continuing Planning Process, and 
other public participation opportunities.
    Chapter 6--Source Inventory: Describes the source inventory for 
sludge, unpermitted discharges, general permits and pretreatment 
programs that will be entered into the Permits Compliance System (PCS--
the computer tracking system for NPDES permits).
    Chapter 7--Compliance Monitoring: Gives a brief overview of 
compliance review activities for inspections, Discharge Monitoring 
Reports and other required reports to be submitted by the permittee.
    Chapter 8--PCS and Program Reporting: Describes the Permits 
Compliance System and the types of data tracked by it. This chapter 
also describes how this data is updated.
    Chapter 9--Flow of Information and Records: Details the documents 
to be processed, the timelines for these processes, types of 
information received by ODEQ, permit file contents, and describes how 
information is disseminated.
    Chapter 10--Enforcement and Compliance: This chapter gives the 
legal authority for ODEQ enforcement actions, outlines ODEQ policies 
related to compliance and enforcement and provides a description of 
state enforcement actions.
    Chapter 11--Pretreatment: This chapter gives the authority for ODEQ 
pretreatment program; and the components of the program such as, the 
establishment of limits for indirect users, fundamentally different 
factors, categorical determination requests, reporting requirements, 
inspections and enforcement.
    Chapter 12--Storm Water: describes the storm water program, its 
implementation in Oklahoma, and the general permits which regulate many 
of the storm water dischargers. The authority to regulate dischargers 
covered by general permits will be phased over to the state within 
three years.
    Chapter 13--Sewage Sludge: Gives a brief description of sewage 
sludge program, its history, and statutory framework. It describes 
sludge permits and reports required.
    Chapter 14--Toxics Control: Describes the permit conditions 
relating to the control of toxicity. This includes biomonitoring 
requirements and numerical limits for toxics in permits.
    Chapter 15--Program Description EPA Oversight: Explains the 
mechanism EPA will use to oversee the OPDES program and the authority 
for EPA oversight.
    3. Enforcement Management System (EMS): States seeking 
authorization of their permitting and enforcement program under NPDES 
have the option of adopting EPA's enforcement policies, procedures, and 
guidance; or provide in their program package a complete description of 
their enforcement authority and compliance evaluation program (40 CFR 
123.26 and 123.27). Oklahoma developed its own enforcement management 
system. An EMS outlines the ways the State systematically and 
efficiently identifies instances of noncompliance and

[[Page 45425]]

provides timely and appropriate enforcement actions to achieve the 
final objective of full compliance by the permittee with the Clean 
Water Act. An EPA memo dated October 2, 1989, titled ``Final Version of 
the Revised Enforcement Management System,'' describes seven basic 
principles that are common to an effective EMS:

--Maintain a source inventory that is complete and accurate;
--Handle and assess the flow of information available in a systematic 
and timely basis;
--Accomplish a pre-enforcement screening by reviewing the flow of 
information as soon as possible after it is received;
--Perform a more formal enforcement evaluation where appropriate, using 
systematic evaluation screening criteria;
--Institute a formal enforcement action and follow-up whenever 
necessary;
--Initiate field investigations based on a systematic plan; and,
--Use internal management controls to provide adequate enforcement 
information to all levels of organization.

    The ODEQ's Enforcement Management System (EMS) is a written outline 
or guide which discusses the procedures that will be followed to ensure 
that both federal and state regulatory requirements and goals are 
accomplished in a timely and appropriate manner.
    The inspection and enforcement functions of the Oklahoma Department 
of Environmental Quality (ODEQ) reside in the Water Quality Division's 
Field Inspection and Compliance Section and the Water Quality Program 
Management Section headquartered in Oklahoma City. The Field Inspection 
and Compliance Section is responsible for inspecting all permitted and 
unpermitted facilities which have or are believed to have a surface 
water discharge and is primarily responsible for the investigation and 
resolution of all citizen complaints involving waters of the State. The 
State Environmental Laboratory and the local ODEQ representatives from 
the Environmental Complaints and Local Services Division (located 
within the counties of Oklahoma) assist in preliminary inspection and 
investigation of complaints.
    Penalties. The ODEQ has adopted EPA's civil penalty policy to 
ensure the consistent assessment and collection of administrative 
penalties in their state. The amount of penalty sought by ODEQ for 
permit or CWA violations will be consistent with Clean Water Act 
Penalty Policy.
    Enforcement. In contrast to the compliance orders EPA issues under 
CWA Sec. 309(a)(3), ODEQ's Compliance Orders (COs) are subject to 
appeal.
    Staffing. ODEQ has committed to establish full program staffing by 
FY 99. This will require the state to hire additional personnel over a 
3 year period; 10 the 1st year, 8 the 2nd year and 2 the 3rd year.
    4. Attorney General's Statement: An Attorney General's Statement is 
required and described in regulations found at 40 CFR 123.23. The State 
Attorney General must certify that the State has lawfully adopted 
statutes and regulations which provide the State agency with the legal 
authority to administer a permitting program in compliance with 40 CFR 
Part 123. The Attorney General's Statement from Oklahoma describes and 
cites state legal authority which provide adequate legal authority to 
administer the program; and certifies that the State does indeed have 
the legal authority to administer the OPDES program in accordance with 
the regulations in 40 CFR 123.

Comments on the Described Program

    The program submitted by the State of Oklahoma has been determined 
by EPA to be complete in accordance with the regulations found at 40 
CFR 123. EPA and ODEQ want to encourage public participation in this 
authorization process so that the citizens of Oklahoma will understand 
the program in their state. Therefore, EPA requests that the public 
review the program that ODEQ has submitted and provide any comments 
they feel are appropriate. EPA and the State want the public to be able 
to effectively coordinate with ODEQ on OPDES permitting and enforcement 
actions. EPA will consider all comments on the OPDES program and/or its 
authorization in its decision.

Other Federal Statutes

 A. National Historic Preservation Act

    Section 106 of the National Historic Preservation Act (NHPA) 
requires that all federal agencies must consult with the State Historic 
Preservation Officer (SHPO) and the Advisory Council on Historic 
Preservation (ACHP) on all federal undertakings which may affect 
historic properties or sites listed or eligible for listing in the 
National Register of Historic Places. Regulations outlining the 
requirements of a Section 106 consultation on a federal undertaking are 
found at 36 CFR Part 800. Approval of the State NPDES permitting 
program under section 402 of the Clean Water Act is a federal 
undertaking subject to this requirement, but the State's subsequent 
issuance of OPDES permits may not be. EPA has thus consulted in 
accordance with Section 106 of the NHPA to assure equivalent protection 
of eligible properties will be provided in connection with State permit 
actions. In that consultation, EPA, the SHPO and ODEQ outlined 
procedures by which, following approval of the state's program, ODEQ 
and the SHPO would confer on permit actions likely to affect historic 
properties. These processes are reflected in a memorandum of 
understanding signed by EPA and the SHPO on EPA's oversight role and 
objection procedures on permits when the two state agencies can not 
agree on the protection of historic properties. The EPA/ODEQ MOA 
includes conditions for EPA and ODEQ to follow to ensure that the 
requirements of the consultation with the SHPO are met. These 
consultation documents are available with the program package for 
public review and comment.

B. Endangered Species Act

    Section 7 of the Endangered Species Act (ESA) requires that all 
federal agencies consult on federal actions which may affect federally 
listed species to insure they are unlikely to jeopardize the continued 
existence of those species or adversely modify their critical habitat. 
Regulations controlling consultation under ESA Section 7 are codified 
at 50 CFR Part 402. The approval of the State permitting program under 
section 402 of the Clean Water Act is a federal action subject to this 
requirement, but the State's subsequent OPDES permit actions are not. 
EPA has completed informal consultation with the U.S. Fish and Wildlife 
Service (FWS or the Service). In the course of consultation, EPA, the 
Service, and ODEQ have outlined procedures by which ODEQ and FWS, will 
confer on permits which are likely to affect federally listed species. 
These processes are reflected in a Memorandum of Understanding between 
the State and FWS. In addition, a consultation agreement has been 
reached between EPA and FWS on EPA's oversight role and objection 
procedures when ODEQ and FWS cannot agree on the protection of species 
in an individual State permit action. These conditions are reflected in 
the EPA/ODEQ MOA. These documents are available with the program 
package for public review and comment.

C. Small Business Regulatory Enforcement Fairness Act

    Under section 801(a)(1)(A) of the Administrative Procedures Act 
(APA) as

[[Page 45426]]

amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, EPA submitted a report containing this rule and other required 
information to the U.S. Senate, the U.S. House of Representatives and 
the Comptroller General of the General Accounting Office prior to 
publication of the rule in today's Federal Register. This rule is not a 
``major rule'' as defined by section 804(2) of the APA as amended.

D. Regulatory Flexibility Act

    After review of the facts presented in this document, I hereby 
certify, pursuant to the provisions of 5 U.S.C. 605(b), that this 
proposal will not have a significant impact on a substantial number of 
small entities. The approval of the Oklahoma NPDES permit program would 
merely transfer responsibilities for administration of the NPDES permit 
program from Federal to State government.
    I hereby propose to authorize the OPDES program in accordance with 
40 CFR part 123.

    Dated: August 22, 1996.
Jane N. Saginaw,
Regional Administrator.
[FR Doc. 96-21944 Filed 8-28-96; 8:45 am]
BILLING CODE 6560-50-P