[Federal Register Volume 66, Number 12 (Thursday, January 18, 2001)]
[Proposed Rules]
[Pages 4768-4770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1347]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 123

[FRL-6933-3]


Water Pollution Control; Program Modification Application by 
South Dakota To Administer the Sludge Management (Biosolids) Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; second notice of application and public comment 
period.

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SUMMARY: The State of South Dakota has submitted an application to EPA 
to revise the existing South Dakota Pollutant Discharge Elimination 
System (SDPDES) program to include administration and enforcement of 
the sludge management (biosolids) program. According to the State's 
proposal dated March 23, 1998, this program would be administered by 
the South Dakota Department of Environment and Natural Resources 
(SDDENR).
    The application was described in a Federal Register notice dated 
October 5, 2000 (65 FR 59385) and in notices published in the Rapid 
City Journal and the Sioux Falls Argus-Leader on October 20, 2000. 
Notices were mailed to persons known to be interested in such matters, 
including all persons on appropriate State and EPA mailing lists and 
all permit holders and applicants within the State. There were no 
comments received during the public comment period. The Federal 
Register notice provided for a 45-day comment period but did not state 
that a public hearing could be requested and would be considered by 
EPA. Therefore, EPA is extending the public comment period.
    The application from South Dakota is complete and is available for 
inspection and copying. EPA has reviewed the State's request for 
delegation for completeness and adequacy and has found that the 
proposal meets Federal equivalency regulations.

DATES: Comments on this proposed rule received on or before March 5, 
2001 will be considered before issuing a final rule. Comments 
postmarked after this date may not be considered.

ADDRESSES: You can view and copy South Dakota's application for 
modification from 8:00 a.m. until 5:00 p.m. Monday through Friday, 
excluding holidays, at the South Dakota Department of Environment and 
Natural Resources; Joe Foss Building, Pierre, South Dakota or at the 
EPA Regional Office at 999 18th Street, Denver, Colorado. Requests for 
copies should be addressed to Kelli Buscher, South Dakota Department of 
Environment and Natural Resources at the above address or at telephone 
number 605-773-3351. (There will be a $15 charge for copies.) 
Electronic comments are encouraged and should be submitted to 
[email protected] or send written comments to Robert Brobst, U.S. EPA/ 
8P-WP, 999 18th Street, Suite 300, Denver, Colorado 80202-2466.

FOR FURTHER INFORMATION CONTACT: Robert Brobst at the above address by 
phone at (303) 312-6129, or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: Section 405 of the Clean Water Act (CWA), 33 
U.S.C. Section 1345, created the sludge management program, allowing 
EPA to issue permits for the disposal of sewage sludge under conditions 
required by the CWA. Section 405(c) of the CWA provides that a state 
may submit an

[[Page 4769]]

application to EPA for administering its own program for issuing sewage 
sludge permits within its jurisdiction. EPA is required to approve each 
such submitted state program unless EPA determines that the program 
does not meet the requirements of Sections 304(i) and/or 402(b) of the 
CWA or the EPA regulations implementing those sections.
    South Dakota's application for sludge management program approval 
contains a letter from the Governor requesting program approval, an 
Attorney General's Statement, copies of pertinent State statutes and 
regulations, amendments to the SDPDES Program Description, and 
amendments to the SDDENR/EPA Memorandum of Agreement (MOA) executed by 
the Regional Administrator, Region 8, EPA, and the Secretary, 
Department of Environment and Natural Resources.
    The State of South Dakota has existing environmental self-
evaluation laws and rules. These provide evidentiary privilege and 
limited immunity for certain disclosures made in an environmental self-
evaluation. SDCL section 1-40-35 provides that no privilege or immunity 
exists for information required to be collected, developed, maintained, 
or reported to the department according to State law, rule, regulation, 
or permit.
    South Dakota has incorporated Federal sludge management regulations 
by reference into its State rules. These rules require record keeping 
and reporting for certain technical monitoring and assessment, 
management practices, and certain certifications of compliance. Because 
these requirements and any requirement in sludge permits would be 
excluded from the self-evaluation privilege, EPA believes that South 
Dakota has the authority necessary to administer the sludge management 
program to assure protection of public health and the environment, and 
invites comment on this issue.
    EPA discussed the SDDENR program application with the South Dakota 
Office of the U.S. Fish and Wildlife Service and received their 
concurrence dated June 29, 2000 stating that the proposed program 
authorization was unlikely to jeopardize the continued existence of any 
endangered species or threatened species, or result in the destruction 
or adverse modification of habitat of such species.
    By Letter dated October 20, 1999, EPA discussed the program 
application with the South Dakota State Historic Preservation Officer 
and received concurrence by letter dated November 5, 1999. The State 
Historic Preservation Officer determined that no historic properties 
would be affected by the addition of the biosolids program.
    What are biosolids? Biosolids are, in effect, a slow release 
nitrogen fertilizer with low concentrations of other plant nutrients. 
In addition to significant amounts of nitrogen, biosolids also contain 
phosphorus, potassium, and essential micronutrients such as zinc and 
iron. Many western soils are deficient in micronutrients. Biosolids are 
rich in organic matter that can improve soil quality by improving water 
holding capacity, soil structure and air and water transport. Proper 
use of biosolids can ultimately decrease topsoil erosion. When applied 
at agronomic rates (the rates at which plants require nitrogen during a 
defined growth period), biosolids provide an economic benefit in 
addition to their environmental benefits.
    How do biosolids differ from sewage sludge? Most simply, biosolids 
is the new name for what had previously been referred to as sewage 
sludge. Biosolids are primarily treated organic solids at wastewater 
treatment plants--with the emphasis on the word treated--that are 
suitable for recycling as a soil amendment. Sewage sludge now refers to 
untreated primary and secondary organic solids. This differentiates 
biosolids that have received stabilization treatment at a municipal 
wastewater treatment plant from other types of existing sludge (such as 
oil and gas field wastes) that cannot be beneficially recycled as soil 
amendments.
    What are the traditional practices in this region? Until 25 years 
ago, the traditional practice in this Region was to landfill or 
incinerate what was then called sewage sludge. During the past quarter 
century the practice changed to recycling biosolids as soil amendments. 
States in Region 8 recycle 85% of the biosolids generated in the six 
state Region.

What Are the Federal Requirements?

    The EPA in 1993 set forth requirements for management of all 
biosolids generated during the process of treating municipal 
wastewater, commonly called the 503 rule. The 503 rule encourages the 
beneficial reuse of biosolids, and establishes strict standards under 
which wastewater residuals can be beneficially recycled as soil 
amendments. The EPA believes that biosolids are an important resource 
that can and should be safely recycled. The 503 rule is designed to 
protect public health and the environment. Most of the requirements 
were based on the results of extensive multimedia risk assessment and 
on more that 25 years of independent research. The 503 rule establishes 
standards for pathogen destruction and for levels of metals that can be 
present in biosolids. It also governs the agricultural practices, site 
restrictions, and crop harvesting restrictions and the stability of the 
materials by reducing the attraction of disease vectors (such as 
flies).

Indian Country

    South Dakota is not authorized to carry out its Biosolids program 
in Indian Country, as defined in 18 U.S.C. 1151. This includes, but is 
not limited to: Lands within the exterior boundaries of the following 
Indian reservations located within the State of South Dakota:
A. Cheyenne River Indian Reservation,
B. Crow Creek Indian Reservation,
C. Flandreau Indian Reservation,
D. Lower Brule Indian Reservation,
E. Pine Ridge Indian Reservation,
F. Rosebud Indian Reservation,
G. Standing Rock Indian Reservation, and
H. Yankton Indian Reservation.
    EPA held a public hearing on December 2, 1999, in Badlands National 
Park, South Dakota, and accepted public comments on the question of the 
location and the extent of Indian Country within the State of South 
Dakota. In a forthcoming Federal Register notice, EPA will respond to 
the comments that have been received and more specifically identify 
Indian Country areas in the State of South Dakota.

Public Notice Procedures

    Copies of all submitted statements and documents shall become a 
part of the record submitted to EPA. All comments or objections 
presented in writing to EPA Region 8 and postmarked within 45 days of 
this notice will be considered by EPA before it takes final action on 
South Dakota's request for program modification approval. All written 
comments and questions regarding the sludge management program should 
be addressed to Robert Brobst at the above address. The public is also 
encouraged to notify anyone who may be interested in this matter. A 
public hearing may be requested. A public hearing will be held if 
response to this notice indicates significant public interest.

EPA's Decision

    EPA will consider and respond to all significant comments received 
before taking final action on South Dakota's request for Sludge program 
approval. If no substantial comments are received,

[[Page 4770]]

EPA will approve South Dakota's sludge management program. The decision 
will be based on the requirements of Sections 405, 402 and 304(i) of 
the CWA and EPA regulations promulgated thereunder.
    If the South Dakota program modifications are approved, EPA will so 
notify the State and anyone who has submitted significant comments. 
Notice will be published in the Federal Register and, as of the date of 
program approval, EPA will suspend issuance of federal NPDES sludge 
management permits in South Dakota (except, as discussed above, for 
those dischargers in ``Indian Country''). The State's program will 
operate in lieu of the EPA-administered program. However, EPA will 
retain the right, among other things, to object to SDNPDES permits 
proposed by South Dakota and to take enforcement actions for 
violations, as allowed by the CWA.
    If EPA disapproves South Dakota's sludge management program, EPA 
will notify the State and anyone who submitted significant comments of 
the reasons for disapproval and of any revisions or modifications to 
the State program that are necessary to obtain approval.

Regulatory Flexibility Act

    Based on General Counsel Opinion 78-7 (April 18, 1978), EPA has 
long considered a determination to approve or deny a State NPDES 
program submission to constitute an adjudication because an 
``approval,'' within the meaning of the Administrative Procedure Act 
(APA), constitutes a ``licence,'' which, in turn, is the project of an 
``adjudication.'' For this reason, the statutes and Executive Orders 
that apply to rulemaking action are not applicable here. Among these 
are provisions of the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et 
seq. Under the RFA, whenever a Federal agency proposes or promulgates a 
rule under section 553 of the APA, after being required by that section 
or any other law to publish a general notice of proposed rulemaking, 
the Agency must prepare a regulatory flexibility analysis for the rule, 
unless the Agency certifies that the rule will not have a significant 
economic impact on a substantial number of small entities. If the 
Agency does not certify the rule, the regulatory flexibility analysis 
must describe an assess the impact of a rule on small entities affected 
by the rule.
    Even if the NPDES program approval were a rule subject to the FRA, 
the Agency would certify that approval of the State proposed SDPDES 
program would not have a significant economic impact on a substantial 
number of small entities. EPA's action to approve an NPDES program 
merely recognizes that the necessary elements of an NPDES program have 
already been enacted as a matter of State law; it would, therefore, 
impose no additional obligation upon those subject to the State's 
program. Accordingly, the Regional Administrator would certify that 
this program, even if a rule, would not have significant economic 
impact on a substantial number of small entities.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires WPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or lease burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Today's decision includes no Federal mandates for State, local or 
tribal governments or the private sector. The Act excludes from the 
definition of a ``Federal mandate'' duties that arise from 
participation in a voluntary Federal program, except in certain cases 
where a ``federal intergovernmental mandate'' affects an annual federal 
entitlement program of $500 million or more which are not applicable 
here. South Dakota's request for approval of its budget management 
program is voluntary and imposes no Federal mandate within the meaning 
of the Act. Rather, by having its sludge management program approved, 
the State will gain the authority to implement the program within its 
jurisdiction, in lieu of EPA, thereby eliminating duplicative State and 
Federal requirements. If a State chooses not to seek authorization for 
administration of a sludge management program, regulation is left to 
EPA.
    EPA's approval of state programs generally may reduce compliance 
costs for the private sector, since the State, by virtue of the 
approval, may now administer the program in lieu of EPA and exercise 
primary enforcement. Hence, owners and operators of sludge management 
facilities or businesses generally no longer face dual Federal and 
State compliance requirements, thereby reducing overall compliance 
costs. Thus, today's decision is not subject to the requirements of 
sections 202 and 205 of the UMRA.
    The Agency recognizes that small governments may own and/or operate 
sludge management facilities that will become subject to the 
requirements of an approved State sludge management program. However, 
small governments that own and/or operate sludge management facilities 
are already subject to the requirements in 40 CFR parts 123 and 503 and 
are not subject to any additional significant or unique requirements by 
virtue of this program approval. Once EPA authorizes a State to 
administer its own sludge management program and any revisions to that 
program, these same small governments will be able to own and operate 
their sludge management facilities or businesses under the approved 
State program, in lieu of the Federal program. Therefore, EPA has 
determined that this document contains no regulatory requirements that 
might significantly or uniquely affect small governments.

    Dated: January 4, 2001.
William P. Yellowtail,
Regional Administrator, Region 8.
[FR Doc. 01-1347 Filed 1-17-01; 8:45 am]
BILLING CODE 6560-50-P