[Federal Register Volume 71, Number 150 (Friday, August 4, 2006)]
[Notices]
[Pages 44291-44294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-12359]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8204-7]


Water Pollution Control; State Program Requirements; Program 
Modification Application by Michigan To Administer a Partial 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 
Michigan has submitted a program modification application to EPA, 
Region 5 to administer and enforce a sewage sludge (biosolids) 
management program. Specifically, the state is seeking

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approval of a biosolids management program which addresses the land 
application of biosolids. Michigan is not seeking approval of the land 
application of domestic septage, surface disposal of biosolids, 
incineration of biosolids, or the landfilling of biosolids. Further, 
the state is not seeking program approval for, and the state's 
biosolids management program will not extend to ``Indian Country'' as 
defined in 18 U.S.C. 1151 and applicable case law. According to the 
state's application, this program would be administered by the Michigan 
Department of Environmental Quality (MDEQ).
    The application from Michigan 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 Michigan NPDES biosolids management program 
will be from the date of publication until September 18, 2006. Comments 
postmarked after this date may not be considered.

ADDRESSES: Viewing/Obtaining Copies of Documents. You can view 
Michigan's application for modification from 8 a.m. until 4 p.m. 
(Eastern time zone) Monday through Friday, excluding holidays, at the 
MDEQ, Constitution Hall, Water Bureau, 525 W. Allegan St., South 
Tower--2nd Floor, Lansing, Michigan 48913, contact James Johnson (517) 
241-8716; MDEQ Cadillac/Saginaw Bay Districts, 503 N. Euclid Ave., Ste 
1, Bay City, Michigan 48706-2965, contact Mike Person (989) 686-8025; 
MDEQ Grand Rapids/Kalamazoo Districts, 4460 44th St., SE., Ste. E, 
Kentwood, Michigan 49512, contact David Schipper (616) 356-0276; MDEQ 
Jackson District, 301 Louis Glick Highway, Jackson, Michigan 49201, 
contact Greg Merricle (517) 780-7841; MDEQ S.E. Michigan District, 
27700 Donald CT, Warren, Michigan 48092-2793, contact Todd Jaranowski 
(586) 753-3798; and, MDEQ Upper Peninsula District, K.I. Sawyer 
International Airport, 420 Fifth St., Gwinn, Michigan 49841, contact 
Ben Thierry (906) 346-8528. A copy of Michigan'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 MDEQ's offices or EPA's office in Chicago.
    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 MDEQ, Attn: James Johnson, 
Constitution Hall, Water Bureau, 525 W. Allegan St., South Tower--2nd 
Floor, Lansing, Michigan 48913. 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 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 the above address by 
phone 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. Biosolids and the State Biosolids 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. Regulatory Flexibility Act
    C. 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 biosolids management program, requiring EPA to set 
standards for the use and disposal of biosolids and requiring EPA to 
include biosolids 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 biosolids 
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, 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 biosolids management 
program approval are listed in 40 CFR part 501.
    The Michigan NPDES program was approved by EPA on October 17, 1973. 
EPA received the biosolids management program application from Michigan 
on April 4, 2002. Michigan's application for the biosolids management 
program approval contains a letter from the Director of MDEQ 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 MDEQ. The state, based on comments from 
EPA, submitted revisions to its application on April 21, 2005, and 
March 17, 2006.
    The Director's letters of March 28, 2002 and March 17, 2006, 
requested that EPA approve the state's biosolids management program as 
a modification of its NPDES program. On April 21, 2005, the Director 
clarified that ``the MDEQ is not seeking approval of federal authority 
of its Biosolids Application Program in Indian country at this time.''
    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 biosolids 
management program. State statutes and regulations cited in the 
Attorney General's Statement are also included in the application. The 
Attorney General's Statement states that the state is not seeking 
approval of the biosolids program over ``Indian lands'' which it 
defines separately from the term ``Indian Country.'' This statement has 
been superseded by the state's letter of April 21, 2005 which states 
that the application is not seeking approval in Indian country at this 
time, but reserves the right to do so in the future. It is EPA's long-
standing position that the term ``Indian lands'' is synonymous

[[Page 44293]]

with the term ``Indian country''. Washington Dep't of Ecology v. U.S. 
EPA, 752 F.2d 1465, 1467, n.1 (9th Cir. 1985). See 40 CFR 144.3 and 
258.2.
    The Program Description includes a description of the scope and 
organizational structure of the biosolids 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 biosolids management program.
    The proposed amendments to the MDEQ/EPA MOA include provisions for 
permit administration, enforcement and compliance monitoring, and 
annual reporting. The MOA was signed by the Director of MDEQ on May 17, 
2006, 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 biosolids 
management program administration.

II. Biosolids and the State Biosolids Management Program

    Biosolids 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 
biosolids generated during the process of treating municipal 
wastewater. 40 CFR part 503. The part 503 rules establish standards 
under which biosolids 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 Michigan biosolids management program imposes requirements on 
wastewater treatment plants and biosolids appliers. 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 permittees to develop a Residuals 
Management Program.

III. Indian Country

    Michigan is not authorized to carry out its biosolids management 
program in ``Indian Country,'' as defined in 18 U.S.C. 1151 and 
applicable case law. Indian Country includes:
    1. All lands within the limits of any Indian reservation under the 
jurisdiction of the United States government, notwithstanding the 
issuance of any patent, and, including rights-of-way running through 
the reservation;
    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, if EPA approves the state's biosolids management 
program, it will have no effect in Indian Country. EPA retains the 
authority to implement and administer the NPDES and biosolids program 
in Indian Country.

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 
Michigan's request for program modification approval. All written 
comments and questions regarding the biosolids 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 Michigan'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 Michigan 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 Michigan has submitted a complete 
application. EPA sent a letter to the Director of the MDEQ on April 28, 
2006, stating that the state's application to modify the Michigan NPDES 
program to include a biosolids management program was substantially 
complete, needing only to submit signed copies of the MOA. EPA received 
the signed copies on May 25, 2006, and now has 90 days from that date 
to approve or disapprove Michigan's biosolids 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 Michigan's request for biosolids 
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 Michigan biosolids 
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 land application of biosolids within 
Michigan. EPA, within Michigan, will remain the authority for biosolids 
use and disposal in Indian Country, for the incineration of biosolids, 
for the surface disposal of biosolids, for the landfilling of 
biosolids, 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 Michigan and to take enforcement actions for 
violations, as allowed by the CWA. If EPA disapproves Michigan's 
biosolids management program, EPA will notify Michigan 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

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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 Michigan 
SHPO regarding its determination that approval of the state biosolids 
management program would have no adverse effect on historic properties 
within the State of Michigan.

B. 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 ``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 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 Michigan biosolids management program, even if a rule, would 
not have significant economic impact on a substantial number of small 
entities.

C. 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 lease 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. Michigan's request for approval of its biosolids management 
program is voluntary and imposes no Federal mandate within the meaning 
of the Act. Rather, by having its biosolids 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 biosolids 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 biosolids 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 
biosolids management facilities that will become subject to the 
requirements of an approved state biosolids management program. 
However, small governments that own and/or operate biosolids 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 biosolids management program and any 
revisions to that program, these same small governments will be able to 
own and operate their biosolids 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.

List of Subjects

    Environmental protection, Administrative practice and procedures, 
Indian Country, Intergovernmental relations, Waste treatment and 
disposal, Water pollution control.

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

    Dated: July 5, 2006.
Norman Niedergang,
Acting Regional Administrator, Region 5.
 [FR Doc. E6-12359 Filed 8-3-06; 8:45 am]
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