[Federal Register Volume 67, Number 250 (Monday, December 30, 2002)]
[Notices]
[Pages 79629-79631]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-32907]


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ENVIRONMENTAL PROTECTION AGENCY

FRL-7432-2]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: On December 5, 2002, the Regional Administrator for the 
Environmental Protection Agency, Region IX (EPA), approved the 
application by the State of Arizona to administer and enforce the 
Arizona Pollutant Discharge Elimination System (AZPDES) Program, for 
all areas within the State, other than Indian country. The authority to 
approve State programs is provided to EPA in section 402(b) of the 
Clean Water Act (CWA). The State will administer the approved program 
through the Arizona Department of Environmental Quality (ADEQ), subject 
to continuing EPA oversight and enforcement authority, in place of the 
National Pollutant Discharge Elimination System (NPDES) program 
previously administered by EPA in Arizona. The program is a partial 
program to the extent described in the section of this Notice entitled 
National Pollutant Discharge Elimination System (NPDES) program ``Scope 
of the AZPDES Program.'' In making its decision, EPA considered and 
addressed all comments and issues raised during the public comment 
period.

DATES: Pursuant to 40 CFR 123.61(c), the AZPDES program was approved 
and became effective on December 5, 2002.

FOR FURTHER INFORMATION CONTACT: Matthew Mitchell, USEPA Region IX 
(WTR-5), 75 Hawthorne Street, San Francisco, CA, 94105, (415) 972-3508 
or Chris Varga, Federal Permits Unit, Arizona Department of 
Environmental Quality, 1110 W. Washington St., Phoenix, AZ, 85007, 
(602) 771-4665. Part of the State's program submission and supporting 
documentation is available electronically at the following Internet 
address: http://www.adeq.state.az.us/environ/water/ permits/
federal.html

SUPPLEMENTARY INFORMATION: Arizona's application was described in the 
Federal Register (67 FR 49916) on August 1, 2002, in which EPA 
requested comments. Notice of Arizona's application was published in 
the Arizona Republic on August 13, 2002. A public hearing on the 
application was held on September 4, 2002, in Phoenix, AZ.
    Section 402 (c)(1) of the CWA provides that ninety days after a 
State has submitted an application to administer the NPDES program, 
EPA's authority to issue such permits is suspended unless EPA 
disapproves or approves the State's application. 40 CFR 123.21(b)(1). 
This ninety day statutory review period ended on October 8, 2002. 
However, because of the many complex issues that were raised with 
respect to the State's program and the need to address them in a 
comprehensive manner, EPA was unable to make a final decision by 
October 8, 2002. Thus, EPA suspended issuance of NPDES permits in 
Arizona on October 8, 2002. However, failure to make a decision by the 
October 8, 2002 deadline did not mean that the State automatically 
gained NPDES authority. It is EPA's interpretation that a State agency 
does not gain NPDES authority unless and until EPA approves the State 
program, consistent with CWA section 402(b) and 40 CFR 123.1. As of 
December 5, 2002, the ADEQ is now authorized to issue AZPDES permits 
under the CWA in all areas within the State, except for in Indian 
country.

[[Page 79630]]

A. Scope of the AZPDES Program

    The AZPDES program is a partial program which conforms to the 
requirements of section 402(n)(3) of the CWA. Specifically, Arizona is 
being approved to administer both the NPDES permit program covering 
point source dischargers to State waters and the pretreatment program 
covering industrial sources discharging to publicly owned treatment 
works.
    Pursuant to CWA section 402(d), in specified circumstances EPA 
retains the right to object to AZPDES permits proposed by ADEQ, and if 
the objections are not resolved, to issue the permits itself. EPA also 
will retain jurisdiction over all NPDES permits it has issued in 
Arizona until ADEQ reissues them as AZPDES permits. Finally, EPA and 
State have agreed that EPA may retain permitting authority in certain 
limited circumstances, as set forth in the Memorandum of Agreement 
between EPA and ADEQ.
    As part of operating the approved program, ADEQ generally will have 
the lead responsibility for enforcement. However, EPA will retains its 
full statutory enforcement authorities under CWA sections 308, 309, 
402(i) and 504. Thus, EPA may continue to bring federal enforcement 
action under the CWA in response to any violation of the CWA, as 
appropriate. In particular, if EPA determines that the State has not 
taken timely and/or appropriate enforcement action against a violator 
in Arizona, EPA may take its own enforcement action.

B. Public Comments

    The EPA received numerous public comments concerning the Arizona 
program.
    Several commenters urged the EPA to approve the State's program. 
The EPA agrees that the State program should be approved at this time 
outside Indian country.
    Several commenters were concerned about impacts on endangered 
species and historic properties associated with EPA's approval of the 
AZPDES program. In addition, a few commenters urged that the EPA reject 
Arizona's program application on a variety of grounds.
    All public comments are addressed in EPA's Response to Comments 
Document, dated December 5, 2002. In addition, EPA actions taken in 
accordance with the requirements of the Endangered Species Act and the 
National Historic Preservation Act are described below in Section C.

C. Other Federal Statutes

Endangered Species Act

    Section 7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C. 
1536(a)(2), requires that federal agencies ensure, in consultation with 
the United States Fish & Wildlife Service (FWS) that actions they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of listed threatened or endangered species (listed 
species) or result in the destruction or adverse modification of 
critical habitat designated for such listed species.
    EPA consulted with the FWS under section 7(a)(2) of the ESA 
regarding the effects of the AZPDES program approval on listed species 
and designated critical habitat. On December 3, 2002, the Service 
issued a biological opinion concluding that EPA's approval of Arizona's 
NPDES application is not likely to jeopardize the continued existence 
of listed threatened or endangered species or result in the destruction 
or adverse modification of their critical habitat. In the opinion, the 
FWS also stated that it does not anticipate that EPA's action will 
result in the incidental take of listed species. Issuance of the 
biological opinion with these findings concludes the consultation 
process required by ESA section 7(a)(2) and reflects the Service's 
agreement with EPA that the approval of the State program meets the 
substantive requirements of the ESA.

National Historic Preservation Act

    Section 106 of the National Historic Preservation Act (NHPA), 16 
U.S.C. 470(f), requires Federal agencies to take into account the 
effects of their undertakings on historic properties and to provide the 
Advisory Council on Historic Preservation (ACHP) an opportunity to 
comment on such undertakings. Under the ACHP's regulations (36 CFR part 
800), the Agency consults with the appropriate State Historic 
Preservation Officer (SHPO) and/or Tribal Historic Preservation Officer 
on federal undertakings that have the potential to affect historic 
properties listed or eligible for listing in the National Register of 
Historic Places. During EPA's review of the Arizona NPDES application, 
EPA engaged in discussions with the Arizona SHPO regarding EPA's 
determination that approval of the State permitting program would have 
no effect on historic properties.
    On August 23, 2002, EPA provided the Arizona SHPO's Office with 
EPA's determination that approval of Arizona's application would have 
no effect on historic properties in Arizona. As part of the 
coordination process, the SHPO's Office raised certain issues regarding 
approval of the Arizona program for further discussions. By letter 
dated September 23, 2002, the SHPO withdrew these issues for 
consideration and informed EPA that it was working with ADEQ to 
coordinate its activities in the protection of Arizona's cultural 
resources. On October 18, 2002, the SHPO and ADEQ entered into a 
Memorandum of Understanding (MOU) assuring the SHPO that it would 
receive notices of certain proposed permit actions. This MOU further 
provides for coordination between ADEQ and the SHPO to resolve any 
identified issues to ensure that AZPDES permits will comply with 
Arizona water quality standards and Arizona laws protecting historic 
properties. For those permits with the potential to adversely affect 
historic properties, ADEQ and the SHPO agreed to seek ways to avoid, 
minimize or mitigate any adverse effects to historic properties 
stemming from the proposed permit. EPA believes that the agreement 
between ADEQ and the SHPO is consistent with EPA's determination that 
approval of the State permitting program would have no effect on 
historic properties.

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 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

[[Page 79631]]

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.

E. Notice of Decision

    I hereby provide public notice that EPA has taken final action 
authorizing Arizona to implement the NPDES program in all areas of the 
State except for Indian Country.

    Authority: This action is taken under the authority of section 
402 of the Clean Water Act as amended, 42 U.S.C. 1342.

    Dated: December 5, 2002.
Wayne Nastri,
Regional Administrator, Region IX.
[FR Doc. 02-32907 Filed 12-27-02; 8:45 am]
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