[Federal Register Volume 67, Number 148 (Thursday, August 1, 2002)]
[Notices]
[Pages 49916-49920]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19323]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7253-3]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The State of Arizona has submitted a request for approval of 
the Arizona Pollutant Discharge Elimination System (AZPDES) program 
pursuant to section 402(b) of the Clean Water Act (CWA or ``the Act''). 
With this request, the Arizona Department of Environmental Quality 
(ADEQ) seeks approval to administer a partial program for discharges of 
pollutants into waters of the United States under its jurisdiction. 
Today, EPA Region 9 is providing public notice of Arizona's request for 
AZPDES program approval and of both a public hearing and public comment 
period on the State's program approval submission. EPA will either 
approve or disapprove the State's request after considering all 
comments it receives.

DATES: Comments The public comment period on the State's request for 
approval to administer the proposed AZPDES program will be from the 
date of publication until September 16, 2002. Comments must be received 
or post-marked by no later than midnight on September 16, 2002. Public 
Hearing. A public hearing will be held on September 4, 2002.

ADDRESSES: Comments Send all paper copy comments to: Mr. Matthew 
Mitchell (WTR-5), Water Division, EPA Region 9, 75 Hawthorne Street, 
San Francisco, CA , 94105. Comments may also be submitted 
electronically to the following e-mail address: 
[email protected].
    Electronic comments should be identified by the docket number. EPA 
requests that electronic comments also include the commentor's postal 
mailing address. No Confidential Business Information (CBI) should be 
submitted through e-mail. Comments and data will also be accepted on 
disks in WordPerfect 8.0 format or ASCII file format.
    A copy of each comment should be submitted to: Mr. Chris Varga, 
Federal Permits Unit, Arizona Department of Environmental Quality, 1110 
W. Washington St., Phoenix, AZ 85007.
    Public comments may be in either paper or electronic format. If 
submitting comments in paper format, please submit the original and 
three copies of your comments and enclosures (including references). To 
ensure that EPA can read, understand and therefore properly respond to 
comments, the Agency would prefer that comments be typed or legibly 
written and that commentors cite the paragraph(s) or sections in the 
notice or supporting documents to which each comment refers. Commentors 
who want EPA to acknowledge receipt of their comments should enclose a 
self-addressed stamped envelope.
    Public Hearing. The public hearing will be held at the Best Western 
Executive Park Hotel, 1100 N. Central Ave., Phoenix, Arizona, beginning 
at 1 p.m. on September 4. The public hearing will be conducted in 
accordance with 40 CFR 124.12, and will provide interested parties with 
the opportunity to provide written and/or oral comments for the 
official record.
    Viewing/Obtaining Copies of Documents Copies of Arizona's AZPDES 
program approval submission (referred to throughout this notice as 
Arizona's ``application'') and all other documents in the official 
record are available for inspection from 9 am to 4 pm, Monday through 
Friday, excluding legal holidays, at EPA Region 9, 12th floor Water 
Division, 75 Hawthorne St., San Francisco, CA 94105.
    A copy of Arizona's AZPDES application is also available for 
inspection from 8 am to 5 pm, Monday through Friday, excluding State 
holidays, at the Arizona Department of Environmental Quality, Records 
Management Center, 1110 W. Washington St. , Phoenix, AZ 85007. Please 
call (602) 771-4378 to set up an appointment.
    Copies of the entire State AZPDES program submission are available 
in paper format. Part or all of the State's application may be copied 
at the ADEQ office in Phoenix, or the EPA's office in San Francisco, at 
a minimal cost per page.
    Copies of the documents available in electronic format are 
accessible on the Internet at the ADEQ web page at http://www.adeq.state.az.us/environ/water/permits/federal.html
    Every effort has been made to include each document relevant to 
EPA's decision on this matter in the official record. EPA invites input 
from the public on any document that the public feels should have been 
included in the official record, but has not been.

FOR FURTHER INFORMATION CONTACT: Mr. Matthew Mitchell at the EPA 
address listed above or by calling (415) 972-3508, e-mail: 
[email protected] or Mr. Chris Varga at the ADEQ address listed 
above or by calling (602) 771-4665, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: Section 402 of the CWA created the NPDES 
program under which EPA may issue permits for the point source 
discharge of pollutants to waters of the United States under conditions 
required by the Act. Section 402(b) requires EPA to authorize a State 
to administer an equivalent state program, upon the Governor's request, 
provided the State has appropriate legal authority and a program 
sufficient to meet the Act's requirements.
    The regulatory requirements for state program approval are set 
forth in 40 CFR part 123. 40 CFR 123.21 lists the basic elements of an 
approvable application. EPA Region 9 considers the documents submitted 
by the State of Arizona administratively complete at

[[Page 49917]]

the time of this document. EPA will not make a final decision on AZPDES 
program approval until after: (1) Considering all public comments 
provided during the public comment period or at the public hearing; (2) 
completion of the ongoing consultations with the U.S. Fish and Wildlife 
Service on effects program approval may have on endangered or 
threatened species and their designated critical habitat; and (3) 
completion of ongoing consultations with the State Historic 
Preservation Officer on effects program approval may have on historic 
properties or sites listed or eligible for listing in the National 
Register of Historic Places.
    By letter dated December 20, 2001, the Governor of Arizona 
requested NPDES program approval and submitted a program description 
(including funding, personnel requirements and organization, and 
enforcement procedures), an Attorney General's statement, copies of 
applicable State statutes and regulations, and a Memorandum of 
Agreement (MOA) to be executed by the Regional Administrator of EPA 
Region 9 and the Director of ADEQ. EPA received this package of 
materials on January 14, 2002. EPA Region 9 determined that Arizona's 
approval request did not constitute a complete package under 40 CFR 
123.21, and notified the Director of the Water Quality Division of ADEQ 
in writing on February 15, 2002. By letter of June 5, 2002, the 
Governor of Arizona requested NPDES partial program approval and 
submitted an amended program description, amended Attorney General's 
Statement, amended Arizona statute and rules, and an MOA. EPA received 
this package of materials on June 11, 2002. EPA Region 9 determined 
that the approval request received on June 11, 2002, along with 
supplements received on July 8 and July 10 constituted a complete 
package under 40 CFR 123.21, and a letter of completeness was sent to 
the Director of ADEQ on July 11, 2002.
    EPA is required to approve the submitted program within 90 days of 
submission of the complete information unless it does not meet the 
requirements of section 402(b) of the Act and EPA regulations, or EPA 
and ADEQ jointly agree to extend this deadline. (See 40 CFR 123.21(d)). 
To obtain such approval, the State must show, among other things, that 
it has authority to issue permits which comply with the Act, authority 
to impose civil and criminal penalties for permit violations, and 
authority to ensure that the public is given notice and opportunity for 
a hearing on each proposed permit. After close of the comment period 
and completion of the required consultations with other federal 
agencies, the Regional Administrator for EPA Region 9 will make a 
decision to approve or disapprove the AZPDES program for implementation 
by the State.
    EPA's final decision to approve or disapprove the AZPDES program 
will be based on the requirements of section 402 of the CWA and 40 CFR 
part 123. EPA is also required by the Endangered Species Act (ESA) and 
the National Historic Preservation Act to consult with other federal 
agencies before making a final decision in this matter. For example, 
the ESA requires federal agencies to consult with the U.S. Fish and 
Wildlife Service on the effects of federal actions on endangered 
species. EPA has determined that its action on the AZPDES program 
application constitutes a federal action that is subject to section 7 
of the ESA. Section 7(a)(2) of the ESA places a statutory requirement 
(separate and distinct from CWA section 402(b)) for EPA to ``* * * 
insure that any action authorized, funded or carried out [by EPA]* * * 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of habitat * * * determined to be critical * * *. '' EPA 
Region 9 initiated formal consultation under section 7 of the ESA on 
June 21, 2002. EPA's responsibilities under ESA, as well as under the 
National Historic Preservation Act are discussed in more detail later 
in this notice. Under federal law, EPA may not make a final decision on 
AZPDES program approval until consultation under these acts are 
completed; therefore, it may be necessary to seek ADEQ's agreement on 
an extension of the 90 day approval deadline.
    If EPA approves the Arizona partial program, the Regional 
Administrator will so notify the State and will sign the proposed MOA. 
Notice will be published in the Federal Register and, as of the date of 
program approval, EPA will transfer to the ADEQ NPDES permitting 
authority and primary enforcement responsibility for those discharges 
subject to the AZPDES program, with certain exceptions, which are 
discussed below under Scope, Transfer of NPDES Authority, and Summary 
of the AZPDES Permitting Program. If EPA's Regional Administrator 
disapproves the AZPDES program, the ADEQ will be notified of the 
reasons for disapproval and of any revisions or modifications to the 
program which are necessary to obtain approval.

Public Hearing Procedures

    The following procedures will be used at the public hearing:
    1. The Presiding Officer shall conduct the hearing in a manner 
which will allow all interested persons wishing to make oral statements 
an opportunity to do so; however, the Presiding Officer may inform 
attendees of any time limits during the opening statement of the 
hearing.
    2. Any person may submit written statements or documents for the 
record.
    3. The Presiding Officer may, in his discretion, exclude oral 
testimony if such testimony is overly repetitious of previous testimony 
or is not relevant to the decision to approve or require revision of 
the submitted State program.
    4. The transcript taken at the hearing, together with copies of all 
submitted statements and documents, shall become a part of the record 
submitted to the Regional Administrator.
    5. The hearing record shall be left open until the deadline for 
receipt of comments specified at the beginning of this Notice to allow 
any person time to submit additional written statement or to present 
views or evidence tending to rebut testimony presented at the public 
hearing.
    6. Hearing statements may be oral or written. Written copies of 
oral statements are urged for accuracy of the record and for use of the 
Hearing Panel and other interested persons. Persons wishing to make 
oral testimony supporting their written comments are encouraged to 
summarize their points rather than reading lengthy written comments 
verbatim into the record. All comments received by EPA Region 9 by the 
deadline for receipt of comments, or presented at the public hearing, 
will be considered by EPA before taking final action on the Arizona 
request for NPDES program approval.

Scope, Transfer of NPDES Authority, and Summary of the AZPDES 
Permitting Program

A. Scope of the Partial Program

    The proposed AZPDES program is a partial program which conforms to 
the requirements of section 402(n)(3) of the CWA. ADEQ's application 
for program approval applies to all discharges covered by the authority 
of that agency. This includes most discharges of pollutants subject to 
the federal NPDES program (e.g., municipal wastewater and storm water 
point source discharges, pretreatment, industrial wastewater and storm 
water point source discharges, and point source discharges from federal 
facilities).

[[Page 49918]]

    The ADEQ has authority to regulate discharges from industrial 
facilities covered by all Standard Industrial Classification (SIC) 
codes. The ADEQ has authority to regulate discharges of storm water 
associated with industrial activity and discharges of storm water from 
municipal separate storm sewer systems. The ADEQ has primary 
responsibility for implementing a Pretreatment Program. The ADEQ has 
authority to regulate discharges from publicly owned and privately 
owned treatment works and for discharges from concentrated animal 
feeding operations (CAFOs) within the ADEQ's jurisdiction.
    ADEQ is not seeking the authority to regulate the disposal of 
sewage sludge (in accordance with section 405 of the Act and 40 CFR 
part 503). EPA will retain NPDES permitting authority and primary 
enforcement responsibility over the sewage sludge program. ADEQ is 
planning to apply for this authority in the future.
    ADEQ does not have, and is not seeking, the authority to regulate 
discharges in Indian Country (as defined in 18 U.S.C. 1151). EPA will 
retain NPDES permitting authority and primary enforcement 
responsibility in Indian Country in Arizona.

B. Transfer of NPDES Authority and Pending Actions

    Upon approval of the AZPDES program, authority for all NPDES 
permitting activities, as well as primary responsibility for NPDES 
enforcement activities, within the scope of ADEQ's jurisdiction, would 
be transferred to the State, with some exceptions. These exceptions 
would be agreed to by EPA and the State under the MOA that would be 
signed upon program approval, and are explained below. In addition to 
the exceptions listed below, EPA would retain on a permanent basis its 
authority under section 402(d) of the CWA to object to AZPDES permits 
proposed by ADEQ, and if the objections are not resolved, to issue 
federal NPDES permits for those discharges. EPA would also retain on a 
permanent basis its authority under sections 309 and 504 of the CWA to 
file federal enforcement actions.
1. Permits Already Issued by EPA
    40 CFR 123.1(d)(1) provides that EPA retains jurisdiction over any 
permit that it has issued unless the State and EPA have reached 
agreement in the MOA for the State to assume responsibility for that 
permit. The proposed MOA between EPA and the ADEQ provides that the 
ADEQ would assume at the time of program approval permitting authority 
and primary enforcement responsibility over all NPDES permits issued by 
EPA prior to program approval, with the following exceptions:
    a. Jurisdiction over those discharges covered by permits already 
issued by EPA, but for which evidentiary hearings have been requested 
or an appeal taken prior to AZPDES program approval. Jurisdiction over 
these discharges, including primary enforcement responsibility (except 
as provided by paragraph 3 below-Active Federal Enforcement Cases), 
would be transferred to the State once the evidentiary hearing request 
or appeal has been resolved.
2. Permits Pending With EPA at Time of AZPDES Program Approval
    If the permittee requests, EPA may continue to process a NPDES 
permit application that is pending with EPA at the time of the AZPDES 
program approval. ADEQ will be responsible for final issuance for all 
permits after the program approval date. For permits for which an 
evidentiary hearing has been requested or an appeal taken at the time 
of program authorization, EPA will retain full jurisdiction until the 
matter has been resolved. Upon resolution of the administrative 
challenge, ADEQ will convert the NPDES permit to an AZPDES permit as 
specified in State rule.
3. Active Federal Enforcement Cases
    For active Federal enforcement cases (administrative orders or 
formal referrals to the Department of Justice) at the time of program 
authorization, EPA will complete the enforcement action unless 
otherwise agreed to by EPA and ADEQ. As each EPA enforcement action is 
resolved, EPA will notify ADEQ and transfer any additional permit file 
material at that time. Resolution of an enforcement action may be 
accomplished by the permittee complying with the requirements of a 
compliance order, consent agreement or court order resulting from EPA 
enforcement action, withdrawal of the action by EPA, a court decision 
dismissing the action (in whole or in part) or, if agreed to by EPA, 
the imposition of an equivalent enforceable compliance schedule by 
ADEQ.

C. Summary of the Application Documents

    The AZPDES program is fully described in documents the State has 
submitted in accordance with 40 CFR 123.21, which includes the 
following: a letter from the Governor requesting program approval; a 
Memorandum of Agreement (MOA) for execution by ADEQ and EPA; a Program 
Description, including an Enforcement Management System, outlining the 
procedures, personnel and protocols that would be relied on to run the 
State's permitting and enforcement programs; and a Statement signed by 
the Attorney General that describes the legal authority which the State 
has to administer a program equivalent to the federal NPDES program. 
The State's AZPDES application consists of a letter from the Governor 
of Arizona, enclosing four sections and associated appendices. The 
content of those documents is summarized below.
1. A Letter from the Governor
    Arizona' application for program approval includes a letter dated 
June 5, 2002, from Governor Jane Dee Hull, officially requesting NPDES 
program approval.
2. The EPA/ADEQ MOA
    The requirements for MOAs are found in 40 CFR 123.24. A Memorandum 
of Agreement is a document signed by each agency, committing them to 
specific responsibilities relevant to the administration and 
enforcement of the State's regulatory program. A MOA specifies these 
responsibilities and provides structure for the State's program 
management and EPA's program oversight.
    The MOA submitted by the State of Arizona has been signed by 
Jacqueline E. Schafer, Director of the Arizona Department of 
Environmental Quality. The Regional Administrator of U.S. EPA Region 9 
would sign the document only if the program has been determined 
approvable after all comments received during the comment period 
(including comments received at the public hearing) have been 
considered. The MOA submitted by ADEQ includes the following items:
    Section I--General: This section contains general statements 
describing the purpose of the MOA.
    Section II--Scope of Authorization: This section contains the 
statement of the scope of the NPDES program ADEQ would be 
administering.
    Section III--Program Responsibilities: Lists the responsibilities 
of ADEQ and EPA in maintaining an effective program. Also outlines the 
procedures for transfer of authority over discharges over which EPA 
would be temporarily retaining authority and gives timing for the 
transition.
    Section IV--Permit Review and Issuance: describes all agreements on 
the review and issuance of AZPDES permits. It covers ADEQ's 
responsibilities to issue permits, the

[[Page 49919]]

transfer of EPA files to the State, and the State's application review 
and permit development process. Included are such things as procedures 
for permit modification or reissuance, and EPA's review of AZPDES 
drafted individual and general permits. This section includes the 
State's commitment for responding to public concerns and providing 
public participation in connection with public hearings, evidentiary 
hearings, and administrative and judicial enforcement actions.
    Section V--Compliance and Enforcement: Describes summary agreements 
between EPA and ADEQ regarding EPA oversight of the AZPDES enforcement 
program. These include those commitments on ADEQ's compliance 
monitoring, reviews, pretreatment audits, and inspections.
    Section VI--Pretreatment: Describes summary agreements between EPA 
and ADEQ regarding EPA oversight of AZPDES's implementation of the 
industrial pretreatment program regulating industrial users of 
municipal wastewater treatment plants.
    Section VII--Sewage Sludge/Biosolids Management Program: Describes 
summary agreements between EPA and ADEQ regarding EPA oversight of 
AZPDES's regulation of the disposal of biosolids (sewage sludge) 
generated by wastewater treatment systems. (In the July 8 addendum to 
the MOA, ADEQ clarifies that it is not seeking EPA review of the Sewage 
Sludge/Biosolids Management Program at this time.)
    Section VIII--Reporting and Transmittal of Information on AZPDES 
Regulated Facilities: This section describes how reports and requests 
for information would be handled; and how information is transferred 
between the two agencies.
    Section IX--Program Review: Explains how EPA would periodically 
review the AZPDES program for implementation and continued consistency 
with Clean Water Act requirements.
    Section X--Computation of Time: This section describes procedures 
to compute any periods of time prescribed within the MOA.
    Section XI--Approval and Effective Date: This section states that 
the MOA would become effective on the date of program approval.
3. Program Description
    A program description submitted by a State seeking program approval 
must meet the minimum requirements of 40 CFR 123.22. It must provide a 
narrative description of the scope, structure, coverage and processes 
of the State program; a description of the organization, staffing and 
position descriptions for the lead State agency; and itemized costs and 
funding sources for the program for the first two years after program 
approval. It must describe all applicable State procedures (including 
administrative procedures for the issuance of permits and 
administrative or judicial procedures for their review) and include 
copies of forms used in the program. It must further contain a complete 
description of the State's compliance and enforcement tracking program. 
The program description submitted by ADEQ includes the following:

I. Introduction
II. Scope of the Program
III. Organization and Structure
IV. Resources and Funding
V. Description of State Procedures

4. Attorney General's Statement
    An Attorney General's Statement is required and described in 
regulations found at 40 CFR 123.23. The State Attorney General must 
certify that the State has lawfully adopted statutes and regulations 
which provide the State agency with the legal authority to administer a 
permitting program in compliance with 40 CFR part 123. The Arizona 
Attorney General's Statement describes and cites State legal authority 
it believes adequate to administer the AZPDES program; and certifies 
that the State has the legal authority to administer the AZPDES program 
in accordance with the regulations in 40 CFR part 123. The ``Statements 
of the Attorney General'' which was submitted by Arizona Attorney 
General Janet Neapolitan on June 10, 2002, supplemented on July 10, and 
formally resubmitted on July 12, constitutes the Attorney General's 
Statement required by section 402(b) of the CWA and 40 CFR 123.23 for 
the Purposes of the State's AZPDES application.
5. Arizona Statutes and Rules
    This section contains a list of Arizona statutes and administrative 
regulations relevant to implementation and enforcement of the AZPDES 
program.

Public Comment on the Described Program

    The program submitted by the State of Arizona has been determined 
by EPA to be complete in accordance with the regulations found at 40 
CFR part 123. EPA and ADEQ want the citizens of Arizona to understand 
the proposed AZPDES program and encourage public participation in the 
decision making process. Therefore, EPA requests that the public review 
the program that ADEQ has submitted and provide any comments they feel 
are appropriate. EPA will consider all comments on the AZPDES program 
and/or its approval in its decision.

Other Federal Statutes

A. National Historic Preservation Act

    Section 106 of the National Historic Preservation Act requires that 
all federal agencies consult with the State Historic Preservation 
Officer (SHPO) and the Advisory Council on Historic Preservation 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. The 
EPA is currently in discussions with the SHPO regarding its 
determination that approval of the State permitting program itself 
would have no effect on the preservation of historic properties within 
the State of Arizona.

B. Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act (ESA) requires that 
all federal agencies, in consultation with the U.S. Fish and Wildlife 
Service, insure that any actions they authorize, fund, or carry out are 
unlikely to jeopardize the continued existence of any listed species or 
result in the destruction or adverse modification of critical habitat. 
Regulations controlling consultation under ESA section 7 are codified 
at 50 CFR part 402. The approval of the State permitting program under 
section 402 of the Clean Water Act is a federal action subject to this 
requirement, but the State's subsequent AZPDES permit actions are not. 
EPA Region 9 initiated formal consultation with the U.S. Fish and 
Wildlife Service on June 21, 2002.

C. 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 APA, constitutes a ``license,'' 
which, in turn, is the product 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 
Administrative Procedure Act (APA), after being required by that 
section or any other law

[[Page 49920]]

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 
and 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 RFA, 
the Agency would certify that approval of the State's proposed AZPDES 
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 obligations upon those subject to the State's 
program. Accordingly, the Regional Administrator would certify that 
this program, even if a rule, would not have a significant economic 
impact on a substantial number of small entities.
    I hereby provide public notice of the application by the State of 
Arizona for approval to administer, in accordance with 40 CFR part 123, 
the AZPDES program.

    Dated: July 23, 2002.
Alexis Strauss,
Acting Regional Administrator, Region IX.
[FR Doc. 02-19323 Filed 7-31-02; 8:45 am]
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