[Federal Register Volume 68, Number 211 (Friday, October 31, 2003)]
[Notices]
[Pages 62075-62076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27485]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7580-8]


Public Notice of Draft NPDES General Permits for Wastewater 
Lagoon Systems Located In Indian Country in MT, ND, SD, UT, and WY

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of intent to reissue NPDES general permits.

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SUMMARY: EPA Region 8 is hereby giving notice of its proposed 
determination to issue five National Pollutant Discharge Elimination 
System (NPDES) general permits for wastewater lagoon systems that are 
located in Indian country in the States of MT, ND, SD, UT, and WY and 
that are treating primarily domestic wastewater. The general permits 
are grouped geographically by State, with the permit coverage being for 
specified Indian reservations in the State; any land held in trust by 
the United States for an Indian tribe; and any other areas which are 
Indian country within the meaning of 18 U.S.C. 1151. These general 
permits will replace the twenty-one general permits that were issued 
for a 5-year term in 1998 for Indian reservations in MT, ND, SD, and 
UT.
    The use of wastewater lagoon systems is the most common method of 
treating municipal wastewater in Indian country in MT, ND, SD, UT and 
WY. Wastewater lagoon systems are also used to treat domestic 
wastewater from isolated housing developments, schools, camps, 
missions, and similar sources of domestic wastewater that are not 
connected to a municipal sanitary sewer system and do not use septic 
tank systems. Region 8 is proposing to use general permits instead of 
individual permits for permitting the discharges from such facilities 
in order to reduce the Region's administrative burden of issuing 
separate individual permits. The administrative burden for the 
regulated sources is expected to be about the same under the general 
permits as with individual permits, but it will be much quicker to 
obtain permit coverage with general permits than with individual 
permits. The discharge requirements would essentially be the same with 
an individual permit or under the general permit.

DATES: Public comments on this proposal must be received, in writing, 
on or before December 30, 2003.

ADDRESSES: Public comments should be sent to: U.S. EPA, Region 8; Water 
Permits Unit (8P-W-P); 999 18th Street, Suite 300; Denver, CO 80202-
2466.

FOR FURTHER INFORMATION CONTACT: For a copy of the draft permit and 
Fact Sheet, please write William Kennedy at the above address or 
telephone (303) 312-6285. Copies of the draft permit and Fact Sheet may 
also be downloaded from the EPA Region 8 web page at http://www.epa.gov/region08/html/npdes/lagoons.html. Questions regarding the 
specific permit requirements may be directed to Mike Reed at (303) 312-
6132, or E-mail address [email protected].

SUPPLEMENTARY INFORMATION It is proposed that general permits be issued 
for discharges from wastewater lagoon systems located in the following 
areas:
    Montana: MTG589. This permit covers the 
Blackfeet Indian Reservation; the Crow Indian Reservation; the Flathead 
Indian Reservation; the Fort Belknap Indian Reservation; the Fort Peck 
Indian Reservation; the Northern Cheyenne Indian Reservation; the Rocky 
Boy's Indian Reservation; any land within the State of Montana held in 
trust by the United States for an Indian tribe; and any other areas 
within the State of Montana which are Indian country within the meaning 
of 18 U.S.C. 1151.
    North Dakota: NDG589. This permit covers 
the Fort Berthold Indian Reservation; the Fort Totten Indian 
Reservation--also known as Spirit Lake Indian Reservation; the Standing 
Rock Sioux Indian Reservation; the Turtle Mountain Indian Reservation; 
any land within the State of North Dakota held in trust by the United 
States for an Indian tribe; and any other areas within the State of 
North Dakota which are Indian country within the meaning of 18 U.S.C. 
1151. This permit includes that portion of the Standing Rock Indian 
Reservation and associated Indian country located within the State of 
South Dakota. It does not include any land held in trust by the United 
States for the Sisseton-Wahpeton Sioux Tribe or any other Indian 
country associated with that Tribe, which is covered under general 
permit SDG589.
    South Dakota: SDG589. This permit covers 
the Cheyenne River Sioux Indian Reservation; Crow Creek Sioux Indian 
Reservation; the Flandreau Indian Reservation; the Lower Brule Indian 
Reservation; the Pine Ridge Indian Reservation--includes the entire 
Reservation, which is located in both South Dakota and Nebraska; the 
Rosebud Sioux Indian Reservation; the Yankton Sioux Indian Reservation; 
any land within the State of South Dakota held in trust by the United 
States for an Indian tribe; and any other areas, within the State of 
South Dakota which are Indian country within the meaning of 18 U.S.C. 
1151. This permit includes any land in the State of North Dakota that 
is held in trust by the United States for the Sisseton-Wahpeton Sioux 
Tribe or any other Indian country associated with that Tribe. It does 
not include the Standing Rock Indian Reservation or any associated 
Indian country, which is covered under general permit 
NDG589.
    Utah: UTG589. This permit covers the 
Northwestern Band of Shoshoni Indian Reservation; the Paiute Indian 
Reservation; the Skull Valley Indian Reservation; the Uintah and Ouray 
Indian Reservation; any land within the State of Utah held in trust by 
the United States for an Indian tribe; and any other areas within the 
State of Utah which are Indian country within the meaning of 18 U.S.C. 
1151. It does not include those portions of the Navajo Nation, the 
Goshutes Indian Reservation, and the Ute Mountain Indian Reservation 
located in the State of Utah, any land held in trust by the United 
States for an Indian tribe that is associated with those reservations, 
and any other areas which are Indian country within the meaning of 18 
U.S.C. 1151 that are associated with those reservations.
    Wyoming: WYG589. This permit covers the 
Wind River Indian Reservation; any land within the State of Wyoming 
held in trust by the United States for an Indian tribe; and any other 
areas within the State of Wyoming which are Indian country within the 
meaning of 18 U.S.C. 1151.
    General permits are not being issued for the portions of the Navajo 
Nation and the Goshutes Indian Reservation in Utah since the permitting 
activities for these reservations are done by Region 9 of EPA. Also, 
general permits are not being issued for the Southern Ute Indian 
Reservation located in the State of Colorado and the Ute Mountain 
Indian Reservation located in the States of Colorado, New Mexico, and 
Utah because of water quality concerns in the San Juan River Basin 
portion of the Colorado River Basin.
    Coverage under the general permits will be limited to lagoon 
systems treating primarily domestic wastewater and will include the 
following three categories: (1) Lagoons where no permission is required 
before starting to discharge; (2) lagoons where permission is required 
before starting to discharge;

[[Page 62076]]

and (3) lagoons that are required to have no discharge. The effluent 
limitations for lagoons coming under categories 1 and 2 are based on 
the Federal Secondary Treatment Regulation (40 CFR part 133) and best 
professional judgement (BPJ). There are provisions in the general 
permits for adjusting the effluent limitations on total suspended 
solids (TSS) and pH in accordance with the provisions of the Secondary 
Treatment Regulation. If more stringent and/or additional effluent 
limitations are considered necessary to comply with applicable water 
quality standards, etc., those limitations may be imposed by written 
notification to the permittee. Lagoon systems under category 3 are 
required to have no discharge except in accordance with the bypass 
provisions of the permit. Self-monitoring requirements and routine 
inspection requirements are included in the permits. The permits do not 
authorize the discharge of wastewater from land application sites, but 
they do require that the land application of wastewater from the lagoon 
systems be done in accordance with a written operational plan for the 
land application of the wastewater. The objectives of the operational 
plan are to minimize the potential for the discharge of wastewater from 
the land application site and to avoid applying excessive amounts of 
nitrogen to the land application site.
    With the exception of the Flathead Indian Reservation and the Fort 
Peck Indian Reservation, where the Tribes have Clean Water Act section 
401(a)(1) certification authority, EPA intends to certify that the 
permits comply with the applicable provisions of the Clean Water Act as 
long as the permittees comply with all permit conditions. The permits 
will be issued for a period of five years, with the permit effective 
date and expiration date determined at the time of issuance.

Paperwork Reduction Act

    The information collection requirements of these permits were 
previously approved by the Office of Management and Budget under the 
provisions of the Paperwork Reduction Act, 40 U.S.C. 3501, et seq. and 
assigned OMB control numbers 2040-0250 (General Permits) and 2040-0004 
(Discharge Monitoring Reports).

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.
    OMB has waived review of NPDES general permits under the terms of 
Executive Order 12866.

Regulatory Flexibility Act

    Issuance of an NPDES general permit is not subject to rulemaking 
requirements, including the requirement for a general notice of 
proposed rulemaking, under section 535 of the Administrative Procedures 
Act (APA) or any other law, and is, thus, not subject to the Regulatory 
Flexibility Act (RFA) requirement to prepare an Initial Reg Flex 
Analysis (IRFA).
    The APA defines two broad, mutually exclusive categories of agency 
action--``rules'' and ``orders.'' Its definition of ``rule'' 
encompasses ``an agency statement of general or particular 
applicability and future effect designed to implement, interpret, or 
prescribe law or policy or describing the organization, procedure, or 
practice requirements of an agency * * *'' APA section 551(4). Its 
definition of ``order'' is residual: ``a final disposition * * * of an 
agency in a matter other than rulemaking but including licensing.'' APA 
section 551(6) (emphasis added). The APA defines ``license'' to 
``include * * * an agency permit * * *'' APA section 551(8). The APA 
thus categorizes a permit as an order, which by the APA's definition is 
not a rule. Section 553 of the APA establishes ``rulemaking'' 
requirements. The APA defines ``rulemaking'' as ``the agency process 
for formulating, amending, or repealing a rule.'' (APA section 551(5)). 
By its terms, then, section 553 applies only to ``rules'' and not also 
to ``orders,'' which include permits.

Unfunded Mandates Reform Act

    Section 201 of the Unfunded Mandates Reform Act (UMRA), Public Law 
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'' by reference to 2 U.S.C. 658 which in turn 
defines ``regulation'' and ``rule'' by reference to section 601(2) of 
the Regulatory Flexibility Act (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. * * *''
    As discussed in the RFA section of this notice, 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 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 RFA or UMRA purposes.

    Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

    Dated: October 24, 2003.
Stephen S. Tuber,
Assistant Regional Administrator, Office of Partnerships and Regulatory 
Assistance.
[FR Doc. 03-27485 Filed 10-30-03; 8:45 am]
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