[Federal Register: October 31, 2003 (Volume 68, Number 211)]
[Notices]
[Page 62075-62076]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31oc03-56]
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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 Reed.Mike@epa.gov.
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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