[Federal Register Volume 61, Number 238 (Tuesday, December 10, 1996)]
[Notices]
[Pages 65047-65053]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-31274]


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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5655-4]


State Program Requirements; Approval of Application by Oklahoma 
to Administer the National Pollutant Discharge Elimination System 
(NPDES) Program

AGENCY: Environmental Protection Agency.

ACTION: Final approval of the Oklahoma Pollutant Discharge Elimination 
System under the Clean Water Act.

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SUMMARY: On November 19, 1996, the Regional Administrator for the 
Environmental Protection Agency (EPA), Region 6, approved the 
application by the State of Oklahoma to administer and enforce the 
National Pollutant Discharge Elimination System (NPDES) program for 
regulating discharges of pollutants into waters of the State. The 
authority to approve state programs is provided to EPA in Section 
402(b) of the Clean Water Act (CWA). The approved state program i.e., 
the Oklahoma Pollutant Discharge Elimination System (OPDES) program is 
a partial program to the extent described in this Notice (see section 
titled ``Scope of the OPDES program), which will operate in lieu of the 
EPA administered NPDES program pursuant to Section 402 of the CWA. The 
OPDES program will be administered by the Oklahoma Department of 
Environmental Quality (ODEQ). In making its decision, EPA has 
considered all comments and issues raised during the publicly noticed 
comment period. Summaries of the comments and EPA responses are 
contained in this notice. The comments and public hearing record are 
contained in the administrative record supporting this notice.

EFFECTIVE DATE: November 19, 1996. Because CWA section 301(a) prohibits 
new discharges until they are authorized by an NPDES permit, this 
action is immediately effective to avoid further suspension of 
permitting actions in Oklahoma and the unnecessary burden such a 
suspension would impose on new dischargers.

FOR FURTHER INFORMATION CONTACT: Ms. Ellen Caldwell at U.S. EPA, Region 
6, Water Quality Protection Division, 1445 Ross Avenue, Dallas, Texas 
75202, or by calling (214) 665-7513, or electronically at

[email protected]

or Norma Aldridge, Department of Environmental Quality, Water Quality 
Division, 1000 N.E. 10th Street, Oklahoma City, Oklahoma 73117-1212, or 
by calling (405) 271-5205.

SUPPLEMENTARY INFORMATION: Oklahoma's application for OPDES program 
approval was submitted on June 10, 1996, and final supplements were 
received on August 20, 1996. The documents were described in the 
Federal Register Notice of August 29, 1996, (61 FR 45420) in which EPA 
requested comments and gave notice of public hearing. Further notice 
was also provided by way of publication published on August 28, 1996, 
in The Lawton Constitution, the Daily Oklahoman, the Tulsa World, the 
McAlester News Capital & Democrat, the Guymon Daily Herald, and the 
Woodward News. Copies of the application were made available at the 
addresses below and could also be purchased from the State for the cost 
of $358.65 (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 was provided at no cost to interested parties which 
supply disks to ODEQ for that purpose. (Citizens may still request a 
disc copy and should supply 3 new, 3.5'' high density/double sided 
microdisk. The documents will be in WordPerfect 6.0.) EPA provided 
copies of the public notice to permitted facilities, Indian tribes, and 
other federal and state agencies.
    As a part of the public participation process, both a public 
meeting and hearing were held in MidWest City, Oklahoma, on September 
30, 1996. The public meeting provided as an informal question and 
answer session, and began

[[Page 65048]]

at 2 pm ending at 4:30 pm. The hearing started at 7 pm and lasted until 
7:30 pm. Oral comments were recorded during the hearing and are 
contained in the administrative record supporting this action. Written 
comments were accepted by EPA through October 21, 1996. All comments 
presented during the public comment process, either at the hearing or 
in writing, were considered by EPA in its decision. EPA's responses to 
the issues raised during the comment period are contained in the 
Responsiveness Summary provided in this notice. A copy of EPA's 
decision and its Responsiveness Summary has been sent to all commenters 
and interested parties (those persons requesting to be on the mailing 
list for EPA actions in Oklahoma).
    Copies of the final program documents for the OPDES program are 
available to the public 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 Regional Administrator notified the State of the program 
approval decision by letter dated November 19, 1996, and notice of 
EPA's final decision has been published in the newspapers in which the 
public notice of the proposed program appeared (listed above). As of 
November 19, 1996, EPA suspended issuance of NPDES permits in Oklahoma 
(except for those permits which EPA retained jurisdiction as specified 
below in the section titled ``Scope of the OPDES Program''). The 
State's OPDES program will implement federal law and operate in lieu of 
the EPA-administered NPDES program. EPA does, however, retain the right 
to object to OPDES permits proposed by ODEQ, and if the objections are 
not resolved, to issue the permit itself.
    On May 8, 1996, EPA issued a final rule amending minimum State 
program requirements. The amendment explicitly requires that all states 
that seek to administer an NPDES program must provide an opportunity 
for judicial review in state court of final permit decisions that is 
sufficient to provide for, encourage, and assist public participation 
in the permitting process. The Attorney General Statement submitted by 
Oklahoma addresses the issue of judicial standing, asserting that 
Oklahoma complies with the review criteria expressed in 61 FR 20972 
(May 8, 1996). Based on a review of Oklahoma legal authority, the 
explanation provided in the State's AG Statement and discussions with 
ODEQ attorneys, it appears that Oklahoma law meets the amended State 
NPDES program requirement.

Changes to the OPDES Proposed Documents

    No changes were made to the proposed OPDES program documents based 
on information obtained in the public comments received, however, EPA 
has requested two changes to the Memorandum of Agreement (MOA) 
clarifying how the OPDES program will be consistent with federal 
requirements and policy. These changes are minor and do not require 
additional public notice. No commenter noted these portions of the MOA 
or issues in any submitted comments.
    1. Section C of the Oklahoma/EPA MOA (Jurisdiction over Permits) 
has been revised to clarify that EPA is retaining authority for the 
administration of EPA issued general permits, and not NPDES program 
authority over those classes of discharges which are covered by those 
general permits (See below ``Scope of the OPDES Program'' A.6.). This 
would include the general permit for discharges from UST remediation 
water discharges and the following storm water general permits: 
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). The revised language 
is as follows:
    EPA will temporarily retain authority to administer general permits 
for:
--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.
--New discharges of storm water associated with industrial or 
construction activity, including allowable non-storm water, eligible 
for coverage under an NPDES storm water general permits, excluding new 
discharges subject to a new source performance standard.
--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).

    Case-by-case transfers for individual storm water and UST 
dischargers will be made using the following procedures:

--ODEQ may request early transfer of 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.
--If ODEQ and EPA agree to provide an individual permit in lieu of 
general permit coverage, 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.
--A permittee with a wastewater discharge or storm water discharge that 
is not eligible for coverage under an EPA storm water general permit 
must apply to DEQ for an individual permit.
    Final transfer of general permitting authority for storm water and 
UST discharges will be made using the following procedures:

--No later than 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.
--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.
--If EPA concurs with the Attorney General's statement, the Agency will 
publish notice of the transfer of general permits for the remaining 
storm water and UST discharges to ODEQ and send a copy to the 
appropriate mailing list.
--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. 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

[[Page 65049]]

ODEQ with a list of all facilities authorized to discharge under these 
general permits.

    2. Oklahoma proposed a regulation for consideration for self-
reporting of noncompliance (Title 252:2-117). At the time of this 
authorization the regulation is not finalized. As agreed by EPA and 
ODEQ, language has been added to page 39 of the MOA ensuring that the 
final regulation will be consistent with NPDES program requirements. 
The new language is as follows:

    ``The DEQ's proposed audit rule and any associated policy and/or 
guidance which may be used to mitigate penalties for delegated 
facilities under the OPDES program, must receive final EPA 
concurrence prior to implementation by the State.''

    Once the regulation is finalized, ODEQ will send a revised Program 
Description and/or Enforcement Management System explaining the rule's 
implementation with regard to the OPDES program. The State will also 
send a supplemental Attorney General's Statement to ensure the 
regulation will be consistent with NPDES requirements. To the extent 
EPA finds that a final rule modifies or supplements the OPDES program 
and constitutes a program revision, in accordance with 40 CFR 123.62 
these revisions of the original OPDES program will be publicly noticed 
in the Federal Register and major newspapers in the State to provide 
for public comment on the revision.

Scope of the OPDES Program and Clarifications on EPA Authority and 
Oversight

    All NPDES files under the jurisdiction of ODEQ will be transferred 
from EPA to the state within 30 days. NPDES permits under ODEQ's 
jurisdiction will become state administered OPDES permits and will be 
reissued (upon expiration) or modified by the ODEQ. All permits brought 
to public notice by ODEQ after this authorization and under its OPDES 
authority will be OPDES permits providing NPDES authorization to those 
dischargers.

A. EPA Authority

    Oklahoma's OPDES program is a partial program, which conforms to 
the requirements of section 402(n)(3) of the Clean Water Act. The OPDES 
program applies to all discharges covered by the authority of ODEQ. 
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 CFR part 503). ODEQ does 
not have regulatory authority over facilities regulated by other 
agencies in the State of Oklahoma, therefore EPA will remain the NPDES 
regulatory authority for the following discharges:
    1. Agricultural industries regulated by the Oklahoma Department of 
Agriculture including concentrated animal feeding operations and 
silviculture. EPA will remain the NPDES permitting authority for all 
point source discharges associated with agricultural production, 
services, silviculture, feed yards, livestock markets and animal 
wastes.
    2. Oil and Gas exploration and production related industries and 
pipeline operations regulated by the Oklahoma Corporation Commission. 
EPA will retain NPDES authority over these industries and their 
discharges to surface waters of the state.
    3. 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 U.S.C. 
1151). The state of Oklahoma has undertaken steps to revise regulation 
252:605-1-3(c) 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.
    4. 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.)). EPA does not 
have the authority to approve 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 
regulated under the Atomic Energy Act and may be regulated by EPA; upon 
authorization of the OPDES program, the authority to regulate those 
discharges may become the responsibility of ODEQ.)
    5. 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.
    6. Authority over EPA issued general permits: EPA will retain 
authority to administer general permits in accordance with 40 CFR 
123.1. As explained in the Federal Register Notice proposing approval 
of the OPDES program, Oklahoma 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 program. This revision of Oklahoma Law is to ensure 
that the Oklahoma general permitting program is consistent with the 
requirements of 40 CFR 123.25(c). In the Federal Register Notice 
concerning the proposal of the OPDES program, EPA asserted that ``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.'' EPA 
provided that it would transfer this authority and the administration 
of the general permits to the State once ODEQ has revised its program 
to include general permitting authority. EPA now wishes to clarify that 
the State has program authority over all classes of discharges (except 
as listed above). EPA will not retain program authority over those 
discharges except to the extent it will continue to administer EPA 
issued general permits.
    This clarification will translate into only minor changes for 
permittees in the State of Oklahoma. Until the transfer of general 
permit authority to ODEQ, EPA will continue to administer those general 
permits it has issued or proposed in Oklahoma. Until otherwise notified 
by EPA or the State, permittees covered by those general permits will 
continue to report all compliance information to EPA Region 6. Also, 
any facility eligible for coverage under these permits will send its 
notice of intent to EPA rather than ODEQ. Until otherwise notified by 
the State or EPA, all Notices of Intent and Termination (NOIs and NOTs) 
for coverage under EPA's general permits for storm water (only) should 
continue to be sent to the EPA NOI Processing Center (mail code 4203), 
401 M Street, SW, Washington, DC 20460. The only variation from the 
proposed program will be authority to reissue the general permits. ODEQ 
is the permitting authority, and as such, will reissue the general 
permits once that authority has been transferred to ODEQ. EPA may not 
reissue the general permits once they have expired. If ODEQ has not 
been able to revise its program to include general permitting authority 
prior to the

[[Page 65050]]

expiration of a general permit, it could issue individual permits 
instead. In the interim, any discharger covered by an EPA general 
permit may request that its discharge be covered by an individual 
permit issued by the State as described in the MOA language quoted 
above (Changes to the OPDES Proposed Documents #1).
    The Federal Register Notice of August 29, 1996, proposing approval 
of the OPDES program (61 FR 45420-45426), at page 45422, paragraph 2 
refers to ``Phased Program Authority.'' To eliminate any confusion that 
EPA meant that Oklahoma's NPDES Program is a ``partial and phased'' 
program in the context of Section 402(n)(4) of the Clean Water Act, 33 
USC 1342(n)(4), EPA is clarifying that the word ``phased'' was used in 
a generic sense and not the statutory meaning of a ``phased program'' 
as that term is used in 402(n)(4). A phased program in accordance with 
CWA section 402(n)(4) provides a state up to 5 years to assume 
administration for categories of dischargers considered ``point 
sources'' by the CWA. ODEQ has the legal authority to administer the 
program to include those discharges covered by EPA's general permits 
using individual permits, thus, EPA considers the OPDES program as 
covering all discharges under the jurisdiction of the ODEQ in Oklahoma. 
Therefore, Oklahoma's program is not a ``phased'' program as that term 
is used in section 402(n)(4) of the Clean Water Act.
    7. Status of applications, proposed permits, contested permit 
actions, and unresolved EPA enforcement actions: Except for the files 
listed below, all pending NPDES permit applications and issued NPDES 
permits under jurisdiction of ODEQ will be transferred to Oklahoma 
within 30 days of the approval of the OPDES program. In accordance with 
the signed MOA, EPA will retain temporary authority for all proposed 
permits until final issuance; permits contested under evidentiary 
hearing proceedings until those are resolved; and compliance files and 
authority for all open enforcement orders until such time as ODEQ has 
issued parallel orders or EPA has resolved the enforcement action.
    Proposed Permits: EPA shall retain permit decision-making authority 
over permits which have been publicly noticed until they are issued and 
effective. Once these permits are effective, they will be transferred 
to ODEQ unless contested. The permit files will be transferred to the 
state as the permits become effective.
    Contested Permit Actions: EPA will retain permits for which 
variances or evidentiary hearings have been requested until such time 
as they are resolved. As each request is resolved, EPA will notify ODEQ 
and transfer jurisdiction of the permit to ODEQ. EPA shall also 
maintain enforcement lead over discharge permits with a pending 
evidentiary hearing request; these will be transferred to the state 
upon resolution of the issue for which the hearing was requested.
    Enforcement Actions: EPA Region 6 will retain primary enforcement 
authority after the date the OPDES program is approved for a number of 
facilities which have unresolved compliance issues. These permittees 
will continue to report to EPA on all compliance issues including 
regular submittals of Discharge Monitoring Reports for their NPDES 
permits. Authority for these permits can subsequently be transferred to 
the State one of two ways: (1) The outstanding compliance issue can be 
resolved and the permittee has returned to compliance, or, (2) the 
State can issue a parallel administrative action to address the 
outstanding compliance issue. As a practical consideration, enforcement 
authority for municipal or county facilities that are operated by the 
same governmental entity will not be transferred to the State as long 
as one of its major facilities has an unresolved compliance issue. 
NOTE: EPA in coordination with ODEQ will inform all permittees in 
writing of their reporting responsibilities. Permittees should continue 
to report as specified by both their State and Federal permits until 
otherwise notified.

B. Status of Regulation Changes and Corrections

    1. Indian Country. Amendments to regulation OAC 252:605-1 will be 
presented to ODEQ's Environmental Quality Board (EQB) in March for 
approval.
    2. General Permitting Authority. This change of authority will be 
proposed to the 1997 Legislative session as an amendment to 27A O.S. 
Section 2-14-181 et seq.
    3. Finalization of Audit Privilege Regulation. This proposed 
regulation will be before the EQB on November 26, 1996, and will be 
codified as OAC 252:2-11-7 once the rulemaking process is completed.

Responsiveness Summary

    The following is a summary of the issues raised by persons 
commenting on EPA's proposed approval and EPA's responses to those 
issues.
    1. Issue: EPA received many comments from industry, businesses, 
associations, and municipalities supporting authorization of the OPDES 
program. These commenters cite examples of good working relationships 
with the ODEQ and confidence in the technical skill and ethics of the 
staff and management of that agency. These commenters also point out 
the benefits of having a system run at the state level that is more 
readily accessible and cost effective than the system of having both a 
state and federal permitting program.
    Response: EPA is pleased with the apparent confidence the citizens 
of Oklahoma have in their Department Of Environmental Quality. EPA 
believes that approval of the OPDES program will provide both an 
environmentally protective permitting program, as well as one which 
will be responsive to the needs of citizens and businesses in Oklahoma.
    2. Issue: Some municipalities expressed concern about the need to 
raise fees to support the OPDES program. These commenters support EPA 
approval of the program, while calling for more proportional fee system 
or financial support for municipalities. Only one municipality 
supported the authorization of the OPDES program conditioned upon no 
additional cost to ``mandated participants'' of the program.
    Response: States applying to administer the NPDES program must 
establish that they have the financial ability and structure to run the 
program which EPA would approve (40 CFR 123.21). In the sources of 
funding identified by ODEQ for the OPDES program there is a fee system 
for permittees. The structure and necessity for the fee system was 
researched by ODEQ, reviewed by EPA, and reevaluated by an independent, 
third party study. EPA is satisfied the fee system outlined in the 
OPDES program is appropriate.
    3. Issue: A national trade association sent comments objecting to 
EPA's assertion that authorization of a state program under NPDES was a 
``federal action'' requiring consultation under section 7 of the 
Endangered Species Act (ESA). The association draws the conclusion from 
the ESA that EPA is not authorized nor is under any obligation to 
consult on any action that would not jeopardize a species. The 
association asserted that EPA approval of a state program is no more of 
a ``federal'' action than its review of state-issued permits; that 
EPA's authorization is not a ``discretionary'' action and therefore is 
not subject to the requirements of ESA. The commenters added that EPA 
is under no obligation to initiate formal consultation where the action 
is not

[[Page 65051]]

likely to adversely affect listed species. The commenters believe that 
because the state must administer the same program EPA does, there is 
no change to the ``environmental baseline,'' and therefore jeopardy `` 
* * * is not remotely likely.'' The commenters object to the conditions 
of the agreements reached by EPA, ODEQ and FWS during informal 
consultation, and believes them to be equivalent to ``reasonable and 
prudent measures'' more appropriate to a formal consultation. The 
commenter does not believe EPA has the authority to object to state 
issued permits for their potential effects on listed or proposed 
species. Additionally, the commenter does not agree with EPA, ODEQ, and 
FWS to include proposed species or habitat in the consultation 
agreements.
    Response: The commenters refer to ``EPA's review and approval of a 
state permitting program'' and compares it to EPA's review of state 
issued permits. It is from this comparison that some confusion for the 
commenters may arise. The approval of a state program under section 402 
of the CWA is a federal authorization and not simply a review of the 
state's documents. EPA views the approval as ``discretionary'' in that 
it must work with the state to develop mutual agreements in the MOA 
which is then signed by both agencies.
    The regulations implementing the ESA includes in the term ``action 
* * * all activities or programs of any kind authorized, funded, 
carried out, in whole or in part, by Federal agencies in the U.S. or on 
the high seas.'' (50 CFR 402.02) When an action is determined by the 
agency to have the potential to ``affect'' listed species or critical 
habitat, the agency must consult or confer with the FWS (and for marine 
species National Marine Fisheries Service) to determine if species will 
be adversely effected. The agencies involved may elect to start with 
informal consultation. During this optional process the FWS `` * * * 
may suggest modifications to the action that the Federal agency and any 
applicant could implement to avoid the likelihood of adverse effects to 
listed species or critical habitat.'' (50 CFR 402.13) This process may 
also be applied to avoid jeopardy of a species which have been proposed 
for listing (50 CFR 402.10). Including agency ``conferences'' on 
proposed species and their habitat helps avoid the need for 
reinitiation of consultation after proposed species have been formally 
listed.
    The consultation conducted by Region 6, ODEQ, and FWS applies to 
future actions by the state which could jeopardize listed or proposed 
species. No environmental baseline exists for the proposed state run 
program. If any ``programmatic'' environmental baseline exists, it 
applies only to past permitting actions issued by EPA and not future 
actions that may be issued by the State. A state program is operated in 
lieu of the federally administered NPDES program. The program is based 
not on CWA and its implementing regulations, but instead on state 
regulations and statutes. A state program cannot be judged on the 
baseline of the federal system that preceded it.
    While it may not be clear that the section 7 consultation is 
specifically required for a program authorization, ESA and its 
implementing regulations do not restrict any agency from voluntarily 
consulting and conferring with Fish and Wildlife Service on actions it 
believes may affect listed species. The commenter for the association 
himself stated that `` * * * whether EPA was required to consult with 
FWS is not the issue * * *.'' EPA working cooperatively with ODEQ and 
FWS did informally confer and consult on species and habitat protection 
in the State of Oklahoma. This cooperation resulted in the agreements 
cited by the commenters. Region 6 believes consultation conducted on 
the authorization of a state NPDES program is consistent with the 
intent, definitions and the requirements of the ESA and CWA. The 
conditions of the agreements were placed in the EPA/ODEQ MOA to ensure 
that EPA and ODEQ had clear responsibilities with regard to carrying 
out the agreements.
    EPA's authority to object to state issued permits is outlined in 40 
CFR 123.44 which provides that EPA may object to the issuance of a 
permit which does not comply with the CWA, regulations, or the MOA; or, 
would in any other respect be outside the requirements of the CWA or 
its implementing regulations. CWA section 301(b)(1)(C) incorporates in 
the Act's protection any more stringent requirements required by any 
other Federal law or regulation. Region 6 does not believe that the 
conditions of the consultation agreements go beyond the authority of 
EPA to object to state issued NPDES permits.
    4. Issue: A citizens group located in Grove, Oklahoma expressed 
concern that they had not been satisfied with ODEQ response to 
complaints they had made regarding the water quality of Cave Springs 
and Honey Creek, and the discharge of wastewater from Simmons 
Industries in Missouri. These citizens were bothered that the tone of 
the notices proposing this program were ``pro-industry.'' These 
citizens ask DEQ why it feels competent to take responsibility for the 
NPDES program; and ask EPA if it is not an important link in the 
protection of environmental resources. These citizens also express 
concern regarding agricultural industries.
    Response: While the commenters may have a legitimate concern about 
the impacts of Simmons Industries on the water quality of Cave Springs 
and Honey Creek, the wastewater discharges cited by the citizens are 
regulated by the Missouri Department of Natural Resources (MDNR), not 
ODEQ. ODEQ may comment on the issuance of permits outside its 
jurisdiction which may impact water quality in Oklahoma, and may appeal 
to EPA if permits issued in Missouri do not meet water quality 
standards for that stream segment in Oklahoma. However ODEQ is not 
authorized to take enforcement action against dischargers in 
neighboring states. It is the understanding of Region 6 that ODEQ has 
communicated its concerns and those of the citizens to MDNR and EPA, 
requesting action to protect the water quality in these streams. 
Recently ODEQ has been communicating with Missouri's authorized agency 
recommending more stringent limits in the permit which MDNR is 
currently drafting.
    While ODEQ does not have the authority to address pollutants from 
agricultural industries, ODEQ is working to address all point and non-
point sources of pollutants within its jurisdiction. Authorization of 
the OPDES program under the CWA may help Oklahoma develop more 
comprehensive programs to improve water quality in the State. However, 
EPA's specific authorization of the OPDES program does not extend to 
programs regulating air and solid wastes, nor does it include point 
sources which are not within the jurisdiction of ODEQ or the CWA (see 
Scope of the OPDES Program and Clarifications on EPA Authority and 
Oversight. A.1. above).
    The written agreements of this authorization process will formalize 
the partnership which has existed between EPA and ODEQ since the 
Oklahoma agency's formation, and will provide the structure for the 
side-by-side relationship between the two agencies. Region 6 will 
continue to be ready and available to work with ODEQ and the citizens 
of Oklahoma to ensure the environment is protected.
    The OPDES program, the 43rd state program to be authorized under 
section 402 of the CWA, includes pretreatment, federal facilities and 
sewage sludge.

[[Page 65052]]



                                           State NPDES Program Status                                           
----------------------------------------------------------------------------------------------------------------
                                                                    Approved to                      Approved   
                                                  Approved state     regulate     Approved state      general   
                                                   NPDES 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              --              --        03/04/82
Connecticut.....................................        09/26/73        01/09/89        06/03/81        03/10/92
Delaware........................................        04/01/74              --              --        10/23/92
Florida.........................................        05/01/95              --        05/01/95       05/01/95*
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
Louisiana.......................................        08/27/96        08/27/96        08/27/96        08/27/96
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....................................        09/17/84        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--(06/14/96 Approved Sludge Prgm)...........        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        04/20/91
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......................................              42              36              30             31 
----------------------------------------------------------------------------------------------------------------
Number of Fully Authorized Programs (Federal Facilities, Pretreatment, General Permits) = 27.                   
Number of Fully Authorized Programs, Including Sludge = 1.                                                      
*: Phased Federal facilities & storm water programs by 2000.                                                    

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. EPA's 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 protection of 
eligible properties will be provided in connection with State permit 
actions. In the consultation, EPA, the SHPO and ODEQ outlined 
procedures by which ODEQ and the SHPO will 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.

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

[[Page 65053]]

habitat. Regulations controlling consultation under ESA section 7 are 
codified at 50 CFR part 402. EPA's 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 completed informal consultation with the U.S. Fish 
and Wildlife Service (FWS or the Service). In the consultation, EPA, 
the Service, and ODEQ 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.
    I hereby authorize the OPDES program in accordance with 40 CFR part 
123.


    Dated: November 19, 1996.
Jane N. Saginaw,
Regional Administrator.
[FR Doc. 96-31274 Filed 12-9-96; 8:45 am]
BILLING CODE 6560-50-P