[Federal Register Volume 73, Number 217 (Friday, November 7, 2008)]
[Notices]
[Pages 66243-66245]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-26486]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8739-5]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: On October 31, 2008, the Regional Administrator for the 
Environmental Protection Agency, Region 10 (EPA), approved the 
application by the State of Alaska to administer and enforce an Alaska 
version of the National Pollutant Discharge Elimination System (NPDES) 
program, pursuant to section 402 of the Clean Water Act (CWA or ``the 
Act''). The State will administer the approved Alaska Pollutant 
Discharge Elimination System (APDES) program through the Alaska 
Department of Environmental Conservation (ADEC) regulating discharges 
of pollutants into waters of the United States under its jurisdiction. 
EPA has approved the State's implementation plan that transfers the 
administration of specific program components from EPA to the State 
over a three year period from the date of program approval, subject to 
continuing EPA oversight and enforcement authority, in place of the 
NPDES program previously administered by EPA in Alaska. Upon approval 
of the Alaska program, the Regional Administrator notified the State, 
signed the Memorandum of Agreement between EPA and ADEC, and will 
suspend issuance of NPDES permits in Alaska in accordance with the 
State's approved schedule to transfer NPDES program authority. EPA 
retains NPDES permitting authority and primary enforcement 
responsibility for: the bio-solids program; facilities operating in the 
Denali National Park and Preserve pursuant to Alaska Statehood Act 
Section 11; facilities discharging in Indian Country as defined in 18 
U.S.C. 1151; facilities operating outside state waters (three miles 
offshore); and facilities with CWA section 301(h) waivers. This 
approval includes an implementation plan that transfers the

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administration of specific program components from EPA to the State 
over a three year period from the date of program approval. In making 
its decision, EPA considered and addressed the comments and issues 
raised during the public comment period, public testimony at three 
public hearings, and comments expressed by tribes during the requested 
government-to-government tribal consultations.

DATES: Pursuant to 40 CFR 123.61(c), the APDES program was approved and 
became effective on October 31, 2008.

FOR FURTHER INFORMATION CONTACT: Michael Lidgard, Office of Water and 
Watersheds, U.S. Environmental Protection Agency, Region 10, 1200 6th 
Avenue, Suite 900, Mail Stop OWW-130, Seattle, WA 98101-3140, (206) 
553-1755, [email protected]; or Sharon Morgan, Alaska Department 
of Environmental Conservation, P.O. Box 111800, 410 Willoughby Avenue, 
Suite 303, Juneau, AK 99811-1800, (907) 465-5530, 
[email protected]. The State's program application, supporting 
documentation and EPA's response to comments can be viewed and 
downloaded from the EPA Web site, http://www.epa.gov/r10earth/waterperimits, and the State's program application can also be viewed 
from the ADEC's Web site, http://www.dec.state.ak.us/water/npdes/npdes.htm.

SUPPLEMENTARY INFORMATION: The Alaska program application was described 
in the Federal Register (73 FR 34746) published on June 18, 2008, in 
which EPA requested comments. Notice of Alaska's program application 
was published in four State of Alaska newspapers on June 18, 2008. 
Combined NPDES educational workshops and public hearings on the Alaska 
program application were held in Fairbanks, Alaska, on July 21, 2208, 
in Juneau, Alaska, on July 22, 2008, and in Anchorage, Alaska, on July 
23, 2008. EPA held government-to-government tribal consultations as 
requested in Dillingham, Alaska, on May 12, 2008, in Kotzebue, Alaska, 
on August 5, 2008, in Sitka, Alaska, on September 11, 2008, and in 
Bethel, Alaska, on September 30, 2008. Additionally, EPA held 
government-to-government consultation teleconferences as requested by 
the Loudon Tribal Council of Galena, Alaska, on May 8, 2008; and with 
Sun'aq Tribe of Kodiak, Alaska, on October 3, 2008.
    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 or EPA and the State 
mutually agree to extend this 90-day statutory review period in 
accordance with 40 CFR 123.21(b)(1) and 123.61(b). EPA Region 10 
determined that the APDES program application received on May 1, 2008, 
along with revisions received up to June 9, 2008, were administratively 
complete pursuant to 40 CFR 123.21. On June 10, 2008, a letter of 
completeness and confirmation of the mutual agreement to extend the 
statutory review period was sent to the Commissioner of ADEC.
    In accordance with section 305(b) of the Magnuson-Stevens Fishery 
Conservation and Management Act, EPA completed a ``Determination of No 
Adverse Effect on Essential Fish Habitat of Alaska's APDES Program 
Authorization,'' August 2008. On August 28, 2008, EPA sent the National 
Marine Fisheries Service a courtesy copy of the no effect 
determination.

A. Scope of APDES Program

    The State of Alaska is applying to administer the NPDES permitting, 
compliance and enforcement programs for individual and general permits, 
as well as for the pretreatment and stormwater programs in Alaska. The 
State did not apply to regulate the disposal of sewage sludge (Bio-
Solids Program) in Alaska. EPA retains NPDES permitting authority and 
primary enforcement responsibility over the Bio-Solids Program in 
accordance with section 405 of the Act and 40 CFR part 503.
    Additionally, EPA will retain NPDES permitting authority and 
primary enforcement responsibility over the following: operations in 
the Denali National Park and Preserve pursuant to Alaska Statehood Act 
section 11; NPDES facilities discharging in Indian Country as defined 
in 18 U.S.C. 1151; facilities operating outside state waters (three 
miles offshore); and facilities with CWA section 301(h) waivers.
    The State of Alaska has been approved to assume responsibility for 
the NPDES programs in phases, pursuant to the CWA section 402(n)(4). 
Alaska's application meets the requirements for such a phased approach. 
In accordance with CWA section 402(n)(4), EPA may approve a phased 
permit program covering administration of a major component that 
represents a significant and identifiable part of the NPDES program.
    The State will administer the NPDES program by phases and agrees to 
make all reasonable efforts to assume such administration by the 
deadlines. Specifically, ADEC's approval includes a schedule for EPA to 
transfer permit, compliance, and enforcement responsibility for the 
NPDES program to DEC over three years from the APDES program approval 
date, October 31, 2008. The following schedule identifies the phasing 
plan that the approved APDES program will administer for its 
permitting, compliance, and enforcement activities associated with each 
major component: Phase I, at program approval the APDES program will 
include Domestic Discharges, Timber Harvesting, Seafood Processing 
Facilities, and Hatcheries. Phase II, one year from program approval, 
the APDES program will include Federal Facilities, Stormwater Program 
(excluding the Bio-Solids Program), Pretreatment Program, and 
miscellaneous non-domestic discharges. Phase III, two years from 
program approval, the APDES program will include Mining. Phase IV, 
three years from program approval, the APDES program will include Oil 
and Gas, Cooling Water intakes and dischargers, Munitions, and all 
other remaining facilities.
    Pursuant to CWA section 402(d), in specified circumstances EPA 
retains the right to object to APDES permits proposed by ADEC and, if 
the objections are not resolved, to issue the permits itself. As part 
of operating the approved program, ADEC generally will have the lead 
responsibility for enforcement. However, EPA will retain 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 Alaska, EPA 
may take its own enforcement action.
    Additional details about the scope and summary of the APDES program 
application can be found in the Federal Register (73 FR 34746) 
published on June 18, 2008. Additionally, the APDES program is 
described in documents the State submitted in accordance with 40 CFR 
123.21, which include a letter from the Governor requesting program 
approval; a Memorandum of Agreement (MOA) for execution by ADEC and 
EPA; a Program Description outlining the procedures, personnel, and 
protocols that will be relied on to implement the State's permitting, 
compliance, and enforcement program; a Statement signed by the Attorney 
General that describes the State's legal authority to administer a 
program equivalent to the federal NPDES program; and a

[[Page 66245]]

description of the State's Continuing Planning Process.

B. Public Comments

    The EPA received numerous public comments concerning the Alaska 
APDES program. Several comments urged the EPA to approve the State's 
program. Supporters of approval felt the State had met all of the CWA 
requirements and that the program would benefit from being operated by 
ADEC though increased accessibility, resources, and familiarity with 
Alaska conditions. Comments were received that urged EPA to not approve 
the authorization request based on grounds that the application did not 
meet CWA requirements, including the lack of an adequate state 
enforcement program. Numerous Tribal governments and communities 
expressed concerns that once Alaska receives authorization, government-
to-government tribal consultation with EPA would no longer be required 
and Tribes would lose an avenue for providing input into permit 
decisions. Some Tribes assert EPA's trust responsibilities to Tribes 
prohibit program approval until all Tribal concerns are addressed. All 
public comments are addressed in the EPA Response to Comments document 
dated October 31, 2008, and can be viewed and downloaded from the EPA 
Web site, http://www.epa.gov/r10earth/waterpermits.htm.

C. Obtaining Copies of Documents

    To obtain copies of documents contact Audrey Washington, Office of 
Water and Watersheds, U.S. Environmental Protection Agency, Region 10, 
1200 6th Avenue, Suite 900, Mail Stop OWW-130, Seattle, WA 98101-3140, 
(206) 553-0523, [email protected]; or Sharon Morgan, Alaska 
Department of Environmental Conservation, P.O. Box 111800, 410 
Willoughby Avenue, Suite 303, Juneau, AK 99811-1800, (907) 465-5530, 
[email protected].

D. Notice of Decision

    I hereby provide public notice that EPA has taken final action 
authorizing Alaska to administer and implement the approved Alaska 
Pollutant Discharge Elimination System (APDES) program through the 
Alaska Department of Environmental Quality (ADEC) regulating discharges 
of pollutants into waters of the United States under its jurisdiction.

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

    Dated: October 31, 2008.
Elin D. Miller,
Regional Administrator, EPA, Region 10.
 [FR Doc. E8-26486 Filed 11-6-08; 8:45 am]
BILLING CODE 6560-50-P