[Federal Register Volume 63, Number 164 (Tuesday, August 25, 1998)]
[Notices]
[Pages 45241-45245]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22652]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-6147-6]


Proposed National Pollutant Discharge Elimination System General 
Permit and Reporting Requirements for the Final Beneficial Reuse or 
Disposal of Municipal Sewage Sludge (ARG650000)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Pursuant to section 405(f)(1) of the Clean Water Act (CWA) EPA 
is proposing a General Permit to treatment works treating domestic 
sewage (TWTDS), including publicly owned treatment works (POTWs), in 
the State of Arkansas. Notice is for the draft general permit for the 
land application, surface disposal, and disposal in a municipal solid 
waste landfill (MSWLF) of sewage sludge generated during the treatment 
of domestic sewage in a treatment works.

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SUMMARY: Section 305(f)(1) of the CWA provides all permits issued under 
section 402 to a POTW or any other TWTDS must include requirements for 
the use and disposal of sludge that implement the regulations 
established pursuant to section 405(d) of the CWA (see 40 CFR Part 503 
and Part 258).
    The State of Arkansas was authorized to implement the National 
Pollutant Discharge Elimination System (NPDES) program on November 1, 
1986. It is not applying for authorization to implement the sewage 
sludge program. The Arkansas Pollutant Discharge Elimination System 
permits issued to wastewater treatment facilities will not provide 
permit coverage for disposal of sewage sludge. EPA is proposing this 
permit to assure sewage sludge is beneficially reused or disposed in 
accordance with regulations to protect human health and the 
environment. The 40 CFR Part 503 Standards consist of general 
requirements, pollutant limits, management practices, and operational 
standards, for the final use or disposal of sewage sludge generated 
during the treatment of domestic sewage in a treatment works. Reuse or 
disposal methods addressed in the general permit include sewage sludge 
applied to the land, placed on a surface disposal site, and disposed in 
a municipal solid waste landfill. This notice requests comments on the 
general permit.

DATES: Comments on the proposed permit must be received on or before 
October 26, 1998. See HEARINGS for information on hearing dates.

ADDRESSES: The public should send an original and two copies of their 
comments addressing any aspect of this notice to Wilma Turner, 
Administrative Team of the Water Quality Protection Division (6WQ-CA), 
U.S. Environmental Protection Agency Region 6, 1445 Ross Ave. Suite 
1200, Dallas, Texas 75202 (214) 665-7516.
    The public record is located at EPA Region 6, and is available upon 
written request. Requests for copies of the public record should be 
addressed to Wilma Turner at the address above. A reasonable fee may be 
charged for copying.

FOR FURTHER INFORMATION CONTACT: For further information on the 
proposed draft general permit or a complete copy of the entire fact 
sheet and general permit contact Wilma Turner, Administrative Team of 
the Water Quality Protection Division (6WQ-CA), U.S. Environmental 
Protection Agency Region 6, 1445 Ross Ave., Suite 1200, Dallas, Texas 
75202 (214) 665-7516.

HEARINGS: A meeting and public hearing will be held on September 30, 
1998, at the following location: La Quinta Inn, Otter Creek, 11701 
Interstate 30, Little Rock, Arkansas 72209, Phone: 501-455-2300.
    The public meeting will begin at 3:00 pm and end at 5:00 pm. The 
public hearing will begin at 7:00 pm with registration beginning at 
6:30 pm. The public meeting will provide information on the permit 
conditions. The public can make formal statements and comments for the 
public record at the public hearing.

SUPPLEMENTARY INFORMATION:

I. Framework of Permitting System

    Regulated entities include:

------------------------------------------------------------------------
                Category                  Examples of regulated entities
------------------------------------------------------------------------
Treatment Works Treating Domestic        Publicly Owned Treatment Works 
 Sewage.                                  (Municipalities).             
Treatment Works Treating Domestic        Sewage Sludge Treatment Devices
 Sewage.                                  (Including Blenders of Sewage 
                                          Sludge).                      
Treatment Works Treating Domestic        Wastewater Treatment Devices.  
 Sewage.                                                                
Treatment Works Treating Domestic        Federal Facilities Treating    
 Sewage.                                  Domestic Sewage.              

[[Page 45242]]

                                                                        
Treatment Works Treating Domestic        Owners of Land Dedicated to the
 Sewage.                                  Disposal of Sewage Sludge.    
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    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your operation is regulated by this action, you should carefully 
examine the applicability criteria found in 40 CFR Subpart 122.21(c)(2) 
of title 40 of the Code of Federal Regulations. If you have questions 
regarding the applicability of this action to a particular entity, 
consult the person listed in the preceding FOR FURTHER INFORMATION 
CONTACT section.
    Section 405(f) of the CWA requires that any permit issued under 
section 402 of the Act to a POTW or any other TWTDS shall include the 
requirements established pursuant to section 405(d) of the CWA, unless 
such requirements have been included in a permit issued under the 
appropriate provisions of subtitle C of the Solid Waste Disposal Act, 
Part C of the Safe Drinking Water Act, the Marine Protection, Research, 
and Sanctuaries Act of 1972, or the Clean Air Act.

II. Permitting

A. Permit Application Regulations

1. Regulations Requiring POTW NPDES/Sludge Permit Coverage
    In accordance with 40 CFR Subpart 122.21(c)(2), all POTWs and any 
other existing TWTDS are required to apply for a NPDES permit. POTWs 
generating/treating/blending/disposing of sewage sludge are subject to 
the application submission deadlines as defined in the February 19, 
1993, Federal Register. 40 CFR Subpart 122.21(a) excludes persons 
covered by general permits from requirements to submit individual 
permit applications. Coverage under this general permit will eliminate 
the operator's need to reapply for an individual sewage sludge permit.
2. Regulations Requiring All Other TWTDS Coverage
    All other TWTDS must apply for a permit. A TWTDS is defined in 40 
CFR Subparts 122.2 and 501.2 as ``a POTW or any other sewage sludge or 
waste water treatment devices or systems, regardless of ownership 
(including federal facilities), used in the storage, treatment, 
recycling, and reclamation of municipal or domestic sewage, including 
land dedicated for the disposal of sewage sludge. This includes 
facilities that generate sewage sludge or otherwise effectively control 
the quality or change the characteristics (e.g., blenders) of sewage 
sludge or the manner in which it is disposed. In addition, all TWTDS 
disposing of sewage sludge in a State-permitted Municipal Solid Waste 
Landfill (MSWLF) must also apply for a permit. 40 CFR Part 503 requires 
all sewage sludge disposed in a MSWLF meet the requirements in 40 CFR 
Part 258 concerning the quality of the materials disposed.
3. Application of General Permit
    This public notice specifies that official notification is required 
for coverage under this general permit pursuant to 40 CFR Subpart 
122.28(b)(2). Notifying EPA under a general permit is a mechanism which 
can be used to establish an accounting of the number of permittees 
covered by the general permit, the nature of operations at the facility 
generating the sewage sludge, and the identity and location of sludge 
disposal sites. This type of information is appropriate since the 
sewage sludge is being monitored and tracked. This permit will apply to 
all TWTDS (including POTWs) covered by permitting requirements under 40 
CFR Part 503 and 40 CFR Part 258.
4. Individual Permit Application Requirements
    The requirements for an individual permit application are found in 
40 CFR Subpart 501.15(a)(2). The information is intended to develop the 
site-specific conditions generally associated with individual permits. 
Individual permit applications may be needed under several 
circumstances. Examples include: a TWTDS authorized by a general permit 
that covers final reuse or disposal of sewage sludge and requests to be 
excluded from the coverage of the general permit by applying for an 
individual permit, and EPA has determined the appropriateness of the 
permit (see 40 CFR Subpart 122.28(b)(3)(i) for EPA issued general 
permits); or the Director requires a TWTDS authorized by a general 
permit to apply for an individual permit (see 40 CFR Subpart 
122.28(b)(3)(iii) for EPA issued general permits).

III. Draft General Permit for Final Beneficial Reuse and Disposal 
of Municipal Sewage Sludge

A. Today's Notice

    Today's notice proposes a general permit for final beneficial reuse 
and disposal of municipal sewage sludge in Arkansas. The following 
portion provides notice for the draft general permit and accompanying 
fact sheet for a general Sewage Sludge permit in Arkansas. This draft 
general permit is intended to cover the final beneficial reuse and 
disposal of municipal sewage sludge in accordance with the Standards 
for the Use or Disposal of Sewage Sludge 40 CFR Part 503. The proposed 
permit contains: The Federal guidelines to insure that the permittee's 
practices do not pose a threat to human health and the environment due 
to toxic pollutants and pathogens.
Effective Date of Requirements
    This permit shall be effective the first day of the month following 
issuance.
EPA Contacts
    United States EPA, Region 6, Water Quality Protection Division 
(6WQ-PO). First Interstate Bank Tower at Fountain Place, 1445 Ross 
Avenue, 12th Floor, Suite 1200, Dallas, TX 75202.
Comment Period Closes
    The comment period ends 60 days following the publication of this 
general permit in the Federal Register.

B. Preamble for Draft General Permit

1. Coverage Under the Proposed General Permit
    Types of Final Sludge Reuse or Disposal Practices Covered. Those 
facilities generating sewage sludge or used in the storage, treatment, 
recycling, and reclamation of municipal or domestic sewage, including 
land dedicated for the disposal of sewage sludge. The permit being 
proposed is intended to cover all TWTDS (including POTWs) in the State 
of Arkansas with requirements for the final reuse or disposal of 
municipal sewage sludge.
    Designated Treatment Works Treating Domestic Sewage. In accordance 
with 40 CFR Subpart 122.2 (definition of TWTDS), the Regional 
Administrator may designate any facility a TWTDS if he or she becomes 
aware of facilities which do not automatically fit the definition of 
TWTDS, but finds that the

[[Page 45243]]

facility poses a potential for adverse effects on the public health and 
the environment from poor sludge quality or poor sludge handling, use 
or disposal practices, or where he or she finds that such designation 
is necessary to ensure that such person is in compliance with 40 CFR 
Part 503.
    POTWs with Pending Application. Some existing TWTDS have submitted 
applications in accordance with NPDES requirements and have remained 
unpermitted due to the administrative work load and priorities. All of 
these applicants will gain coverage under the sewage sludge program 
through the issuance of this permit. Region 6 believes this benefits 
those applicants without a permit. Any permittee desiring an individual 
permit may petition the Director in accordance with 40 CFR Subpart 
122.28(b)(3)(iii).
2. Permit Conditions
    a. Description of draft permit conditions. The conditions of this 
draft permit have been developed to be consistent with the self 
implementing requirements of the 40 CFR Part 503 regulations. The draft 
permit contains requirements for TWTDS (including POTWs) that land 
apply municipal sewage sludge, surface dispose municipal sewage sludge, 
and dispose of municipal sewage sludge in a municipal solid waste 
landfill.
    (1) For sewage sludge that is land applied, permit conditions 
specifically address the following: (A) Requirements specific to bulk 
sewage sludge for application to the land meeting class A or B pathogen 
reduction and the cumulative loading rates in Table 2 of the permit, or 
class B pathogen reduction and the pollutant concentrations in Table 3 
of the permit. (B) Requirements specific to bulk sewage sludge meeting 
pollutant concentrations in Table 3 of the permit and Class A pathogen 
reduction requirements. (C) Requirements specific to sludge sold or 
given away in a bag or other container for application to the land that 
does not meet the pollutant concentrations in Table 3 of the permit.
    (2) For sewage sludge that is surface disposed, permit conditions 
specifically address the following: (A) Requirements specific to 
surface disposal sites without a liner and leachate collection system. 
(B) Requirements specific to surface disposal sites with a liner and 
leachate collection system.
    (3) For sewage sludge that is disposed in a municipal solid waste 
landfill, 40 CFR Subpart 503.4 states that permit conditions require 
sewage sludge disposed to meet the quality requirements of 40 CFR Part 
258. Major POTWs (those POTWs with a design flow rate equal to or 
greater than one million gallons per day, and POTWs that serve 10,000 
people or more, or any POTW required to have an approved pretreatment 
program under 40 CFR Subpart 403.8(a)) disposing of sewage sludge in a 
municipal solid waste landfill are required to conduct a TCLP test 
once/permit life to determine if the sludge is hazardous as well as an 
annual paint filter test to assure that the sludge does not contain 
free liquids. Compliance with these testing requirements will assure 
that the sewage sludge meets the quality requirements.
    b. Sludge Quality Limitations. Specific numerical permit conditions 
for metals are dependent upon the quality of the sludge as well as the 
method used by the TWTDS for the final reuse or disposal of municipal 
sewage sludge.

IV. Economic Impact

    EPA believes that this proposed general permit will be economically 
beneficial to the regulated community. It provides an economic 
alternative to the individual application process the facilities 
covered by this permit would otherwise have to face. The requirements 
are consistent with those already imposed by effective federal 
regulations and State requirements.
    An economic analysis was prepared when the 40 CFR Part 503 
regulations were proposed and finalized. Region 6 believes that the 
general permit conditions provide the same requirements as the self-
implementing requirements under the 40 CFR Part 503 rule. Also Region 6 
believes that this general permit is the most economical permitting 
option available to all TWTDS with NPDES application requirements.

V. Compliance With Other Federal Regulations

A. National Environmental Policy Act

    CWA Section 511(c)(1) excludes this action from the National 
Environmental Policy Act of 1969.

B. Endangered Species Act

    The Endangered Species Act (ESA) of 1973 requires Federal Agencies 
such as EPA to ensure, in consultation with the U.S. Fish and Wildlife 
Service (Service) that any actions authorized, funded, or carried out 
by the Agency (e.g., EPA issued sewage sludge permits requiring 
compliance with the conditions in the Part 503 regulations) are not 
likely to adversely affect the continued existence of any federally-
listed endangered or threatened species or adversely modify or destroy 
critical habitat of such species (see 16 U.S.C. 1536(a)(2), 50 CFR Part 
402 and 40 CFR Subpart 122.49(c)).
    Accordingly, sewage sludge final reuse and disposal activities that 
are likely to adversely affect species are not eligible for permit 
coverage under this sewage sludge general permit.
    To be eligible for coverage under the sewage sludge general permit, 
applicants are required to review the list of species and their 
locations and which are described in the instructions for completing 
the application requirements under this permit. If an applicant 
determines that none of the species identified are found in the county 
in which the TWTDS, surface disposal site, land application site or 
MSWLF is located, then there is no likelihood of an adverse effect and 
they are eligible for permit coverage. Applicants must then certify 
that their operation is not likely to adversely affect species and will 
be granted sewage sludge general permit coverage 48 hours after the 
date of the postmark on the envelope used to mail in the notification.
    If species are found to be located in the same county as the TWTDS, 
surface disposal site, land application site, or MSWLF then the 
applicant next must determine whether the species are in proximity to 
the sites. A species is in proximity if it is located in the area of 
the site where sewage sludge will be generated, treated, reused or 
final disposed. If an applicant determines there are no species in 
proximity to the potential sites, then there is no likelihood of 
adversely affecting the species and the applicant is eligible for 
permit coverage.
    If species are in proximity to the sites, as long as they have been 
considered as part of a previous ESA authorization of the applicant's 
activity, and the environmental baseline established in that 
authorization is unchanged, the applicant may be covered under the 
permit. For example, an applicant's activity may have been authorized 
as part of a section 7 consultation under ESA, covered under a section 
10 permit, or have received a clearance letter. The environmental 
baseline generally includes the past and present impacts of all 
federal, state and private actions that were contemporaneous to an ESA 
authorization. Therefore, if a permit applicant has received previous 
authorization and nothing has changed or been added to the 
environmental baseline established in the previous authorization, then 
coverage under this permit will be provided.

[[Page 45244]]

    In the absence of such previous authorization, if species are in 
proximity to the sites, then the applicant must determine whether there 
is any likely adverse effect upon the species. This is done by the 
applicant conducting a further examination or investigation which 
includes contacting the Services for a determination on potential 
adverse effects of endangered species. If the applicant determines that 
there likely is, or will likely be an adverse effect, then the 
applicant is not eligible for general permit coverage.
    All TWTDS applying for coverage under this permit must provide in 
the notification to EPA the following information: (1) a determination 
as to whether there are any species in proximity to the sites, and (2) 
a certification that their sewage sludge treatment, reuse, or disposal 
are not likely to adversely effect species or are otherwise eligible 
for coverage due to a previous authorization under the ESA. Coverage is 
contingent upon the applicant's providing truthful information 
concerning certification and abiding by any conditions imposed by the 
permit.
    TWTDS who are not able to determine that there will be no likely 
adverse affect to species or habitats and cannot sign the certification 
to gain coverage under this sewage sludge general permit, must apply to 
EPA for an individual sludge only permit. As appropriate, EPA will 
conduct ESA Sec. 7 consultation when issuing such individual permits.
    Regardless of the above conditions, EPA may require that a 
permittee apply for an individual sewage sludge permit on the basis of 
possible adverse effects on species or critical habitats. Where there 
are concerns that coverage for a particular discharger is not 
sufficiently protective of listed species, the Service (as well as any 
other interested parties) may petition EPA to require that the 
discharger obtain an individual NPDES permit and conduct an individual 
section 7 consultation as appropriate.
    In addition, the Service may petition EPA to require that a 
permittee obtain an individual sewage sludge permit. The permittee is 
also required to make the record keeping information required by the 40 
CFR Part 503 regulations and the permit available upon request to the 
U.S. Fisheries and Wildlife Service Regional Director, or his/her 
authorized representative.
    These mechanisms allow for the broadest and most efficient coverage 
for the permittee while still providing for the most efficient 
protection of endangered species. It significantly reduces the number 
of TWTDS that must be considered individually and therefore allows the 
Agency and the Services to focus their resources on those discharges 
that are indeed likely to adversely affect water-dependent listed 
species. Straightforward mechanisms such as these allow applicants with 
expedient permit coverage, and eliminates ``permit limbo'' for the 
greatest number of permitted discharges. At the same time it is more 
protective of endangered species because it allows both agencies to 
focus on the real problems, and thus, provide endangered species 
protection in a more expeditious manner. Prior to the publication of 
the public notice of this draft permit in the Federal Register, the 
Service concurred that the draft permit would not adversely affect 
listed species. No comments were submitted.

C. National Historic Preservation Act

    The National Historic Preservation Act (NHPA) prohibits Federal 
actions that would affect a property that either is listed on, or is 
eligible for listing, on the National Historic Register. EPA therefore 
cannot issue permits to treatment works treating domestic sewage 
(including publicly owned treatment works (POTWs)) affecting historic 
properties unless measures will be taken such as under a written 
agreement between the applicant and the State Historic Preservation 
Officer (SHPO) outlining all measures to be undertaken by the applicant 
to mitigate or prevent adverse effects to the historic property. 
Therefore, under today's permit land applying, surface disposing, or 
disposing of sewage sludge in a municipal solid waste landfill may be 
covered only if the action will not affect a historic property that is 
listed or is eligible to be listed in the National Historic Register, 
or the operator has obtained and is in compliance with a written 
agreement signed by the State Historic Preservation Officer (SHPO) that 
outlines measures to be taken to mitigate or prevent adverse effects to 
the historic site. Prior to the publication of the public notice of 
this draft permit in the Federal Register, the Arkansas State Historic 
Preservation Program determined it had no objections to the general 
permit based on the NHPA. No comments were submitted.

D. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735 [October 4, 1993]), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may have an annual effect 
on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or Tribal governments or communities; create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or raise novel legal or policy issues arising out 
of legal mandates, the President's priorities, or the principles set 
forth in the Executive Order. It has been determined that this general 
permit is not a ``significant regulatory action'' under the terms of 
Executive Order 12866.

E. Paperwork Reduction Act

    The information collection required by this permit has been 
approved by OMB under the provisions of the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq., in submission made for the NPDES permit program 
and assigned OMB control number 2040-0004 for the discharge monitoring 
reports. Permit application and Notice of Intent information has been 
assigned the OMB control number 2040-0086.

F. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., a 
Federal agency must prepare an initial regulatory flexibility analysis 
``for any proposed rule'' for which the agency ``is required by section 
553 of [the Administrative Procedure Act (APA)], or any other law, to 
publish general notice of proposed rulemaking.'' The RFA exempts from 
this requirement any rule that the issuing agency certifies ``will not, 
if promulgated, have a significant economic impact on a substantial 
number of small entities.''
    EPA did not prepare a regulatory flexibility analysis (IRFA) for 
the proposed permit. EPA views issuance of a ``sewage sludge only'' 
general permit to not be subject to rulemaking requirements, including 
the requirement for a general notice of proposed rulemaking, under APA 
section 553 or any other law, and is thus not subject to the RFA 
requirement to prepare an IRFA. The EPA concluded that the permit, if 
issued as drafted, would not have a significant impact on a substantial 
number of small entities. NPDES general permits are not ``rules'' under 
the APA and thus not subject to the APA requirement to publish a notice 
of proposed rulemaking. NPDES general

[[Page 45245]]

permits are also not subject to such a requirement under the Clean 
Water Act (CWA). While EPA publishes a notice to solicit public comment 
on draft general permits, it does so pursuant to the CWA section 402(a) 
requirement to provide ``an opportunity for a hearing.''

G. Unfunded Mandates Reform Act

    Section 201 of the Unfunded Mandates Reform Act (UMRA), P.L. 104-4, 
generally requires Federal agencies to assess the effects of their 
``regulatory actions'' on State, local, and tribal governments and the 
private sector. UMRA uses the term ``regulatory actions'' to refer to 
regulations. (See, e.g., UMRA section 201, ``Each agency shall . . . 
assess the effects of Federal regulatory actions . . . (other than to 
the extent that such regulations incorporate requirements specifically 
set forth in law)'' (emphasis added)). UMRA section 102 defines 
``regulation'' and ``rule'' by reference to section 658 of Title 2 of 
the U.S. Code, which in turn defines ``regulation'' and ``rule'' by 
reference to section 601(2) of the RFA. That section of the RFA defines 
``rule'' as ``any rule for which the agency publishes a notice of 
proposed rulemaking pursuant to section 553(b) of the Administrative 
Procedure Act (APA), or any other law. . . .''
    NPDES general permits are not ``rules'' under the APA and thus not 
subject to the APA requirement to publish a notice of proposed 
rulemaking. NPDES general permits are also not subject to such a 
requirement under the Clean Water Act (CWA). While EPA publishes a 
notice to solicit public comment on draft general permits, it does so 
pursuant to the CWA section 402(a) requirement to provide ``an 
opportunity for a hearing.'' Thus, NPDES general permits are not 
``rules'' for UMRA purposes but are treated with rule-like procedures.

    Signed this 17th day of August, 1998.
Oscar Ramirez, Jr.,
Deputy Director, Water Quality Protection Division (6WQ), EPA Region 6.
[FR Doc. 98-22652 Filed 8-24-98; 8:45 am]
BILLING CODE 6560-50-P