[Federal Register Volume 69, Number 140 (Thursday, July 22, 2004)]
[Notices]
[Pages 43846-43847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16712]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7791-5]


Issuance of Final 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.

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SUMMARY: EPA Region 8 is hereby giving notice of its issuance of five 
National Pollutant Discharge Elimination System (NPDES) general permits 
for wastewater lagoon systems that are located in Indian country in the 
States of Montana, North Dakota, South Dakota, Utah (except for those 
portions of the Navajo Nation, the Goshutes Indian Reservation, and the 
Ute Mountain Ute Indian Reservation located in the State of Utah), and 
Wyoming 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 replace the twenty-one general 
permits that were issued for a 5-year term in 1998 for Indian 
reservations in Montana, North Dakota, South Dakota, and Utah. The 
following nine communities in South Dakota have been excluded from 
coverage under the general permit for South Dakota: Batesland, Claire 
City, Martin, New Effington, Peever, Rosholt, Sisseton, Summit, and 
Veblen.
    The use of wastewater lagoon systems is the most common method of 
treating municipal wastewater in Indian country in Montana, North 
Dakota, South Dakota, Utah and Wyoming. 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 will 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. Therefore, there should be no significant difference in the 
amount and types of pollutants discharged.
    The deadlines for applying for coverage under the general permits 
are given in the permits and the fact sheet. Facilities that had 
coverage under the previous general permit which this permit replaces 
are required to submit a complete Notice Of Intent (NOI) within 90 days 
after the effective date of this permit if they want to maintain 
coverage under the general permit. Facilities that did not have 
coverage under the previous general permit which this permit replaces 
must submit a complete NOI at least thirty (30) days before either (1) 
the expected start of discharge from the wastewater lagoon system, or 
(2) the date when the operator wants authorization to begin. 
Authorization to discharge under this permit does not begin until the 
operator receives written authorization from the permit issuing 
authority.

DATES: The general permits become effective on August 16, 2004 and will 
expire on August 16, 2009. For appeal purposes, the 120-day time period 
for appeal to the U.S. Federal Courts will begin on the effective date 
of the permit.

ADDRESSES: The public record is located in the offices of EPA Region 8, 
and is available upon written request. Requests for copies of the 
public record, including a complete copy of response to comments, a 
list of changes made from the draft permit to the final permit, the 
general permit, and the fact sheet for the general permit, should be 
addressed to William Kennedy, Water Permits Unit (8P-W-P); U.S. EPA, 
Region 8; 999 18th Street, Suite 300; Denver, CO 80202-2466 or 
telephone (303) 312-6285. Copies of the general permit, fact sheet, 
response to comments, and a list of changes from the draft permit to 
the final permit may also be downloaded from the EPA Region 8 web page 
at: http://www.epa.gov/region8/water/wastewater/npdeshome/lagoonpermit.html. Please allow approximately one week after the date 
of this notice for documents to be posted on the web page.

FOR FURTHER INFORMATION CONTACT: Questions regarding the specific 
permit requirements may be directed to Mike Reed, (303) 312-6132 or E-
mail at [email protected].

SUPPLEMENTARY INFORMATION: Region 8 proposed and solicited comments on 
the general permits at 68 FR 62075 (October 31, 2003). In addition, 
notices and copies of the draft general permit and fact sheet were sent 
to the applicable tribes in Region 8. Notices were sent to the persons 
on the Region 8 mailing list for public notices for NPDES permits. 
Comments were received from the Confederated Salish and Kootenai Tribes 
of the Flathead Nation, the Fort Peck Tribes, the Wind River 
Environmental Quality Commission (WREQC), the South Dakota Department 
of Environment and Natural Resources (SDDENR), and an individual from 
Montana. The response to comments is included as part of the public 
record. Also, the public record includes a list of the changes made 
from the draft permit to the final permit.

[[Page 43847]]

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, are 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: July 15, 2004.
Stephen S. Tuber,
Assistant Regional Administrator, Office of Partnerships and Regulatory 
Assistance.
[FR Doc. 04-16712 Filed 7-21-04; 8:45 am]
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