[Federal Register Volume 66, Number 242 (Monday, December 17, 2001)]
[Notices]
[Pages 64977-64979]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-31011]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7118-8]


State Program Requirements; Revision of the Approved National 
Pollutant Discharge Elimination System (NPDES) Program in South Dakota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice; Approval of revision of the South Dakota NPDES Program 
under the Clean Water Act.

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SUMMARY: On October 22, 2001, the Acting Regional Administrator for 
Region VIII of the Environmental Protection Agency (EPA) approved a 
revision to the existing South Dakota Pollutant Discharge Elimination 
System program. With this revision, the State of South Dakota is now 
authorized to administer and enforce a sludge management (biosolids) 
program where the State has jurisdiction. This program will be 
administered by the South Dakota Department of Environment and Natural 
Resources (SDDENR).

FOR FURTHER INFORMATION CONTACT: Bob Brobst, Water Permits Team (8P-W-
P), US EPA, Region VIII, 999 18th Street, Suite 300, Denver, Colorado 
80202-2466; telephone number (303) 312-6129; email address 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Under Section 402 of the Clean Water Act (CWA), 33 U.S.C. 1342, the 
EPA may issue permits allowing discharges of pollutants from point 
sources into waters of the United States, subject to various 
requirements of the CWA. These permits are known as National Pollutant 
Discharge Elimination System (NPDES) permits. Section 402(b) of the 
CWA, 33 U.S.C. 1342(b), allows states to apply to the EPA for 
authorization to administer their own NPDES permit programs. In 1993, 
South Dakota applied to the EPA for authority to administer the South 
Dakota Pollutant Discharge Elimination System (SDPDES) program. The EPA 
approved South Dakota's application on December 30, 1993, as described 
in a January 11, 1994 Federal Register notice (59 FR 1535).
    Section 405 of the CWA, 33 U.S.C. 1345, authorizes the EPA to issue 
permits for the disposal of sewage sludge. Section 405(c) of the CWA, 
33 U.S.C. 1345(c), authorizes any state desiring to administer its own 
permit program for the sludge disposal to do so in accordance with 
Section 402 of the CWA. On August 12, 1998, South Dakota submitted such 
an application to the EPA, requesting that the State's original NPDES 
authorization be amended to include a state sludge management program 
described in an accompanying proposal dated March 23, 1998.
    The EPA, having found that South Dakota's application meets all 
pertinent requirements in the CWA and the EPA's regulations, 
particularly 40 CFR parts 123 and 501, has approved South Dakota's 
application for primary authority to administer a sludge management 
program.

II. Public Comments

    The EPA provided two periods for any interested member of the 
public to comment on this application. No comments were received.

[[Page 64978]]

    Initially, the EPA described this application in a Federal Register 
notice dated October 5, 2000 (65 FR 59385), in notices published in the 
Rapid City Journal and the Sioux Falls Argus-Leader on October 20, 
2000, and in individual mailings to persons known to be interested in 
such matters. In the October 5, 2000 Federal Register notice, the EPA 
stated it would consider any comments received on or before November 
20, 2000. In a second Federal Register notice, which was dated January 
18, 2001, the EPA extended the public comment period to March 5, 2001, 
because the first Federal Register notice had omitted mention of the 
fact that a public hearing could be requested on the application. No 
public hearing was requested, and none was held.

III. Threatened and Endangered Species

    On June 29, 2000, following discussions with representatives of the 
EPA, the Field Supervisor of the South Dakota Field Office of the 
United States Fish and Wildlife Service concurred with the EPA's 
determination that approving South Dakota's biosolids program 
application was unlikely either to jeopardize the continued existence 
of any species listed as threatened or endangered under the Endangered 
Species Act, 16 U.S.C. 1531 et seq., or to result in the adverse 
modification of any designated critical habitat for any such species.

IV. Historic Preservation

    On November 5, 1999, the South Dakota State Historical Society 
provided the EPA with a written determination that the addition of the 
biosolids program to the SDPDES program would have no effect on 
historic properties in South Dakota.

V. 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.

VI. Administrative Requirements

    The EPA has long considered a determination to approve or deny a 
State NPDES program submission to constitute an adjudication, not a 
rulemaking. This is because an ``approval,'' as that term is used in 
the Administrative Procedure Act, 5 U.S.C. 551 et seq., constitutes a 
``license,'' which, in turn, is the product of an ``adjudication.'' 
Therefore, the requirements for rules that are established by the 
statutes and Executive Orders mentioned below would not apply to this 
action. Even if this action were considered a rulemaking, the statutes 
and Executive Orders discussed below would not apply for the following 
reasons.

A. Paperwork Reduction Act

    The EPA has determined that there is no need for an Information 
Collection Request under the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq., because this action would not impose any new federal reporting or 
record-keeping requirements. Because the State of South Dakota has 
adopted the EPA's sludge management regulation at 40 CFR part 503 by 
reference, the matters subject to reporting and record-keeping 
requirements will remain the same after the EPA's approval of South 
Dakota's program.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 
601 et seq., generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities.
    As Acting Regional Administrator for EPA Region VIII, I hereby 
certify, pursuant to 5 U.S.C. 605(b), that this action will not have a 
significant economic impact on a substantial number of small entities.

C. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act (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, the 
EPA is generally required to 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. The EPA's approval of South Dakota's 
program is not a ``Federal mandate,'' because there is no federal 
mandate for states to establish sludge management programs.

D. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113 section 12(d) (15 U.S.C. 272 
note), directs the EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards, e.g., material specifications, test methods, 
sampling procedures, and business practices, that are developed or 
adopted by voluntary consensus standards bodies. This action does not 
involve the use of technical standards subject to the NTTAA.

E. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA 
must determine whether its regulatory actions are ``significant'' and 
therefore subject to review by the OMB. The EPA has determined that 
this approval action is not ``significant'' for purposes of Executive 
Order 12866 because, as mentioned above, South Dakota has adopted the 
EPA's sludge management regulations.

F. Executive Order No. 12898--Environmental Justice

    Executive Order No. 12898, entitled ``Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations,'' dated February 11, 1994, focuses federal attention on 
the environmental and human health conditions of minority populations 
and low-income populations with the goal of achieving environmental 
protection for all communities. Today's action will not diminish the 
health protection to minority and low-income populations because, as 
mentioned above, it will not impose any different requirements than 
those already in effect for sludge management facilities.

G. Executive Order No. 13045--Protection of Children

    Executive Order No. 13045, dated April 23, 1997 (62 FR 19885), 
applies to any rule that (1) is determined to be ``economically 
significant'' as defined in Executive Order No. 12866, and (2)

[[Page 64979]]

concerns an environmental health or safety risk that the EPA has reason 
to believe may have a disproportionate effect on children. This action 
is not subject to Executive Order No. 13045 because it is not 
economically significant as defined in Executive Order No. 12866.

H. Executive Order No. 13175--Consultation with Tribes

    Under Executive Order No. 13175, no federal agency may issue a 
regulation that has tribal implications, that imposes substantial 
direct compliance costs on Indian tribal governments, and that is not 
required by statute, unless the federal government provides the funds 
necessary to pay the direct compliance costs incurred by the tribal 
governments or the agency consults with tribal officials early in the 
process of developing the proposed regulation. This action will not 
significantly affect any Indian tribe. As indicated above, South Dakota 
is not authorized to implement its sludge management program in Indian 
Country. The EPA will continue to administer the existing sludge 
management program in Indian Country in South Dakota.

I. Executive Order No. 13132--Federalism

    Executive Order No. 13132, entitled ``Federalism,'' dated August 
10, 1999 (64 FR 43255), requires the EPA to develop an accountable 
process to ensure ``meaningful and timely input by State and local 
officials in the development of regulatory policies that have 
federalism implications.'' The phrase ``policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on States, on the relationship 
between the national government and States, or on the distribution of 
power and responsibilities among the various levels of government.'' 
This action does not have federalism implications. It will not have any 
substantial direct effects on the States, on the relationship between 
States and the national government, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order No. 13132. It will merely put in place a State 
regulatory program that is identical to the existing federal program.

J. Executive Order No. 13211--Energy Effects

    Because it is not a ``significant regulatory action'' under 
Executive Order No. 12866, this action is not subject to Executive 
Order No. 13211, ``Actions Concerning Regulations that Significantly 
Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 (May 22, 
2001).

    Dated: December 4, 2001.
Kerrigan Clough,
Acting Regional Administrator, Region VIII.
[FR Doc. 01-31011 Filed 12-14-01; 8:45 am]
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