[Federal Register Volume 69, Number 239 (Tuesday, December 14, 2004)]
[Notices]
[Pages 74522-74525]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27365]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7846-4]


Water Pollution Control; State Program Requirements; Program 
Modification Application by Ohio To Administer the Sewage Sludge 
Management Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of application and public comment period.

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SUMMARY: Pursuant to 40 CFR 123.62 and 40 CFR part 501, the State of 
Ohio has submitted a program modification application to EPA, Region 5 
to administer and enforce a sewage sludge management program. 
Specifically, the State is seeking approval of a sewage sludge 
management program which addresses the land application of sewage 
sludge, surface disposal of sewage sludge, and the landfilling of 
sewage sludge. Ohio is not seeking approval of the land application of 
domestic septage. Also, Ohio is not seeking approval for the 
incineration of sewage sludge at this time, but will in the future. 
Ohio will seek approval for the incineration of sewage sludge when 
their current draft administrative rules for incineration of sewage 
sludge are adopted. The State's sewage sludge management program will 
not extend to

[[Page 74523]]

``Indian Country'' as defined in 18 U.S.C. 1151, and will not include 
lands within the exterior boundaries of Indian reservations within or 
abutting the State of Ohio. According to the State's application, this 
program would be administered by the Ohio Environmental Protection 
Agency (Ohio EPA).
    The application from Ohio is complete and is available for 
inspection and copying. Public comments are requested and encouraged.

DATES: The public comment period on the State's request for approval to 
administer the proposed Ohio NPDES sewage sludge management program 
will be from the date of publication until January 28, 2005. Comments 
postmarked after this date may not be considered.

ADDRESSES: Viewing/Obtaining Copies of Documents. You can view Ohio's 
application for modification from 8:00 a.m. until 4 p.m. (Eastern time 
zone) Monday through Friday, excluding holidays, at the Ohio EPA, 
Lazarus Government Center, Division of Surface Water, 122 S. Front St., 
Columbus, Ohio 43215, contact Suzanne Matz (614) 644-2034; Ohio EPA 
Southeast District Office, 2195 Front Street, Logan, Ohio 43138, 
contact Jeanne Chapman (740) 380-5425; Ohio EPA Southwest District 
Office, 401 E. Fifth St., Dayton, Ohio 45402-2911, contact Sally Brown 
(937) 285-6025; Ohio EPA Northwest District Office, 347 N. Dunbridge 
Rd., Bowling Green, Ohio 43402, contact Megan Carr (419) 373-3003; and, 
Ohio EPA Northeast District Office, 2110 E. Aurora Rd., Twinsburg, Ohio 
44087, contact Lily Aaron (330) 963-1200 extension 129. A copy of 
Ohio's application for modification is also available for viewing from 
9 am to 4 pm, Monday through Friday, excluding legal holidays, at EPA 
Region 5, 16th floor, NPDES Programs Branch, 77 West Jackson Blvd., 
Chicago, IL 60604. Part or all of the State's application may be 
copied, for a minimal cost per page, at Ohio EPA's offices or EPA's 
office in Chicago. Ohio EPA's submission documents are also available 
on the Internet at: http://www.epa.state.oh.us/dsw/sludge/biosolid.html.
    Comments. Electronic comments are encouraged and should be 
submitted to [email protected]. Please send a copy to 
[email protected]. Written comments may be sent to John 
Colletti (WN-16J), EPA, Region 5, 77 West Jackson Blvd., Chicago, IL 
60604. Please send an additional copy to Ohio EPA, Attn: Suzanne Matz, 
Permits and Compliance Section, P.O. Box 1049, Columbus, OH 43216-1049. 
Public comments may be sent in either electronic or paper format. EPA 
requests that electronic comments 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 9.0 format or Microsoft Word format. If submitting 
comments in paper format, please submit the original and three copies 
of your comments and enclosures. Commentors who want EPA to acknowledge 
receipt of their comments should enclose a self-addressed stamped 
envelope.

FOR FURTHER INFORMATION CONTACT: John Colletti at (312) 886-6106, or by 
e-mail at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' or 
``our'' means EPA.

Table of Contents

I. Background
II. Sewage Sludge and the State Sewage Sludge Management Program
III. Indian Country
IV. Public Notice and Comment Procedures
V. Public Hearing Procedures
VI. EPA's Decision
VII. Other Federal Statutes
    A. National Historic Preservation Act
    B. Endangered Species Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act

I. Background

    Under section 402 of the Clean Water Act (CWA), 33 U.S.C. 1342, 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 EPA for authorization to 
administer their own NPDES permit programs.
    Section 405 of the Clean Water Act (CWA), 33 U.S.C. 1345, created 
the Federal sewage sludge management program, requiring EPA to set 
standards for the use and disposal of sewage sludge and requiring EPA 
to include sewage sludge conditions in some of the NPDES permits which 
it issues. The rules developed under section 405(d) are also self-
implementing, and the standards are enforceable whether or not a permit 
has been issued. Section 405(c) of the CWA provides that a state may 
submit an application to EPA for administering its own sewage sludge 
program within its jurisdiction. EPA is required to approve each such 
submitted state program unless EPA determines that the program does not 
meet the requirements of sections 304(i) and/or 402(b) and 405 of the 
CWA or the EPA regulations implementing those sections. 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. The requirements for state sewage 
sludge management program approval are listed in 40 CFR part 501.
    The Ohio NPDES program was approved by EPA on March 11, 1974. EPA 
received the sewage sludge management program application from Ohio on 
May 28, 2004. Ohio's application for the sewage sludge management 
program approval contains a letter from the Governor requesting program 
approval, an Attorney General's Statement, copies of pertinent State 
statutes and regulations, a Program Description, and a Memorandum of 
Agreement (MOA) to be executed by the Regional Administrator of EPA, 
Region 5 and the Director of Ohio EPA. The State, based on comments 
from EPA, submitted a revision of its Program Description and MOA, 
which EPA received on September 28, 2004.
    The Governor's letter of May 12, 2004, requested that EPA approve 
the State's sewage sludge management program as a modification to their 
NPDES program.
    The Attorney General's Statement includes citations to specific 
statutes, administrative rules, and judicial decisions which 
demonstrate adequate authority to carry out the State's sewage sludge 
management program. State statutes and regulations cited in the 
Attorney General's Statement are also included in the application.
    The Program Description includes a description of the scope and 
organizational structure of the sewage sludge management program, 
including a description of the general duties and the total number of 
state staff carrying out the program, a description of applicable State 
procedures, including permitting procedures, and administrative and 
judicial review procedures, and a description of the State's compliance 
tracking and enforcement program. It also includes an inventory of the 
facilities that are subject to regulations promulgated pursuant to 40 
CFR part 503 and subject to the State's sewage sludge management 
program.
    The proposed amendments to the Ohio EPA/EPA MOA include provisions 
for permit administration, enforcement and compliance monitoring, and 
annual reporting. The MOA has been signed by

[[Page 74524]]

the Director of Ohio EPA and will become effective upon the signature 
of the Regional Administrator of EPA, Region 5. The MOA does not limit 
the authority of EPA to take actions pursuant to its powers under the 
CWA, nor does it limit EPA's oversight responsibilities with respect to 
sewage sludge management program administration.

II. Sewage Sludge and the State Sewage Sludge Management Program

    Sewage sludge, are the solids separated from liquids during 
treatment at a municipal wastewater treatment plant and treated to 
stabilize and reduce pathogens. EPA in 1993 adopted standards for 
management of sewage sludge generated during the process of treating 
municipal wastewater. 40 CFR part 503. The part 503 rules establish 
standards under which sewage sludge may be land applied as a soil 
amendment, disposed in a surface disposal site, or incinerated, and 
requirements for compliance with 40 CFR part 258 if placed in a 
municipal landfill. The standards, designed to protect public health 
and the environment, include pollutant limits, pathogen reduction 
requirements, vector attraction reduction requirements, and management 
practices specific to the use or disposal option selected.
    The Ohio sewage sludge management program imposes requirements on 
wastewater treatment plants, sewage sludge appliers, and surface 
disposal site operators. It also provides for the issuance of permits 
under certain conditions, enforcing the standards as necessary, and 
providing guidance and technical assistance to members of the regulated 
community. The program also includes a state-specific feature requiring 
a land applier to obtain site authorization from Ohio EPA before class 
B treated sewage sludge is applied to the site.

III. Indian Country

    Ohio is not authorized to carry out its sewage sludge management 
program in ``Indian Country,'' as defined in 18 U.S.C. 1151. Indian 
Country includes:
    1. All lands within the exterior boundaries of Indian reservations 
within or abutting the State of Ohio;
    2. Any land held in trust by the U.S. for an Indian tribe; and
    3. Any other land, whether on or off an Indian reservation that 
qualifies as Indian Country.
    Therefore, this action has no effect on Indian Country. EPA retains 
the authority to implement and administer the sewage sludge management 
program in Indian Country. However, at this time, there is no Indian 
Country within the State of Ohio.

IV. Public Notice and Comment Procedures

    Copies of all submitted statements and documents shall become a 
part of the record submitted to EPA. All comments or objections 
presented in writing to EPA, Region 5 and postmarked within 45 days of 
this document will be considered by EPA before it takes final action on 
Ohio's request for program modification approval. All written comments 
and questions regarding the sewage sludge management program should be 
addressed to John Colletti at the above address. The public is also 
encouraged to notify anyone who may be interested in this matter.

V. Public Hearing Procedures

    At the time of this notice, a decision has not been made as to 
whether a public hearing will be held on Ohio's request for program 
modification. During the comment period, any interested person may 
request a public hearing by filing a written request which must state 
the issues to be raised to EPA, Region 5. The last day for filing a 
request for a public hearing is 45 days from the date of this notice; 
the request should be submitted to John Colletti at the above address. 
In appropriate cases, including those where there is significant public 
interest, EPA may hold a public hearing. Public notice of such a 
hearing will occur in the Federal Register and in enough of the largest 
newspapers in Ohio to provide statewide coverage and will be mailed to 
interested persons at least 30 days prior to the hearing.

VI. EPA's Decision

    EPA has determined that Ohio has submitted a complete application. 
EPA sent a letter to the Director of the Ohio EPA on November 9, 2004, 
stating that the State's application to modify the Ohio NPDES program 
to include a sewage sludge management program was complete. EPA has 90 
days from the date of that letter to approve or disapprove Ohio's 
sewage sludge management program unless a public hearing is held. After 
the close of the public comment period, EPA will consider and respond 
to all significant comments received before taking final action on 
Ohio's request for sewage sludge management program approval. The 
decision will be based on the requirements of sections 405, 402 and 
304(i) of the CWA and EPA regulations promulgated thereunder. If the 
Ohio sewage sludge management program is approved, EPA will so notify 
the State. Notice will be published in the Federal Register and, as of 
the date of program approval, EPA will no longer serve as the primary 
program and enforcement authority for sewage sludge use and disposal 
within Ohio. EPA will remain the authority for sewage sludge use and 
disposal in Indian Country within Ohio should a Tribe become 
recognized, for the incineration of sewage sludge, and for the land 
application of domestic septage. The State's program will operate in 
lieu of the EPA-administered program. However, EPA will retain the 
right, among other things, to object to NPDES permits proposed by Ohio 
and to take enforcement actions for violations, as allowed by the CWA. 
If EPA disapproves Ohio's sewage sludge management program, EPA will 
notify Ohio of the reasons for disapproval and of any revisions or 
modifications to the State program that are necessary to obtain 
approval.

VII. Other Federal Statutes

A. National Historic Preservation Act

    Section 106 of the National Historic Preservation Act, 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), 
agencies consult with the appropriate State Historic Preservation 
Officer (SHPO) on federal undertakings that have the potential to 
affect historic properties listed or eligible for listing in the 
National Register of Historic Places. EPA, Region 5 is currently in 
discussions with the Ohio SHPO regarding its determination that 
approval of the state sewage sludge management program would have no 
effect on historic properties within the State of Ohio.

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 
not likely to jeopardize the continued existence of any Federally-
listed threatened or endangered species or result in the destruction or 
adverse modification of their designated critical habitat. Regulations 
for consultation under ESA section 7 are codified at 50 CFR part 402. 
EPA, Region 5 has initiated informal ESA section 7 consultation with 
the U.S. Fish and Wildlife Service

[[Page 74525]]

regarding Ohio's request for approval of its sewage sludge management 
program.

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 Clean Water 
Act (CWA) program submission to constitute an adjudication because an 
``approval,'' within the meaning of the Administrative Procedure Act 
(APA), constitutes a ``licence,'' which, in turn, is the project 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 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 CWA program approval were a rule 
subject to the RFA, the Agency would certify that approval of the State 
proposed CWA program would not have a significant economic impact on a 
substantial number of small entities. EPA's action to approve a CWA 
program merely recognizes that the necessary elements of the program 
have already been enacted as a matter of State law; it would, 
therefore, impose no additional obligation upon those subject to the 
State's program. Accordingly, the Regional Administrator would certify 
that this Ohio sewage sludge management program, even if a rule, would 
not have significant economic impact on a substantial number of small 
entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (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, EPA 
generally must 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. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements. Today's decision includes no Federal mandates for State, 
local or tribal governments or the private sector. The Act excludes 
from the definition of a ``Federal mandate'' duties that arise from 
participation in a voluntary Federal program, except in certain cases 
where a ``Federal intergovernmental mandate'' affects an annual Federal 
entitlement program of $500 million or more which are not applicable 
here. Ohio's request for approval of its sewage sludge management 
program is voluntary and imposes no Federal mandate within the meaning 
of the Act. Rather, by having its sewage sludge management program 
approved, the State will gain the authority to implement the program 
within its jurisdiction, in lieu of EPA, thereby eliminating 
duplicative State and Federal requirements. If a State chooses not to 
seek authorization for administration of a sewage sludge management 
program, regulation is left to EPA. EPA's approval of State programs 
generally may reduce compliance costs for the private sector, since the 
State, by virtue of the approval, may now administer the program in 
lieu of EPA and exercise primary enforcement. Hence, owners and 
operators of sewage sludge management facilities or businesses 
generally no longer face dual Federal and State compliance 
requirements, thereby reducing overall compliance costs. Thus, today's 
decision is not subject to the requirements of sections 202 and 205 of 
the UMRA. The Agency recognizes that small governments may own and/or 
operate sewage sludge management facilities that will become subject to 
the requirements of an approved State sewage sludge management program. 
However, small governments that own and/or operate sewage sludge 
management facilities are already subject to the requirements in 40 CFR 
parts 123 and 503 and are not subject to any additional significant or 
unique requirements by virtue of this program approval. Once EPA 
authorizes a State to administer its own sewage sludge management 
program and any revisions to that program, these same small governments 
will be able to own and operate their sewage sludge management 
facilities or businesses under the approved State program, in lieu of 
the federal program. Therefore, EPA has determined that this document 
contains no regulatory requirements that might significantly or 
uniquely affect small governments.

    Authority for parts 123 and 501: Clean Water Act, 33 U.S.C. 1251 
et seq.

    Dated: November 23, 2004.
Norman Niedergang,
Acting Regional Administrator, Region 5.
[FR Doc. 04-27365 Filed 12-13-04; 8:45 am]
BILLING CODE 6560-50-P