Water Pollution Control; State Program Requirements; Program Modification Application by Michigan To Administer a Partial Sewage Sludge Management Program, 44291-44294 [E6-12359]
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Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Notices
other unit data reported to EPA under
the Acid Rain Program since, in
submitting the data under the program,
a source’s Designated Representative
has already certified the accuracy of the
data. However, we will consider any
objections. For example, a source’s
Designated Representative may provide
evidence that we improperly calculated
heat input at the unit level, where the
heat input was actually measured at
another location (such as a common
stack). As a further example, a source’s
Designated Representative may
demonstrate that the data provided in
today’s NODA are not consistent with
the data reported to EPA for compliance
with the Acid Rain Program. In that
case, the objector should explain why
the data values in EPA’s data files are
incorrect and should document and
explain the new data values.
Similarly, in general, we do not
anticipate revisions to data reported to
EIA since such data were submitted to
meet regulatory reporting requirements.
However, we will consider any
objections to the data as reported, as
well as any calculation in which we
used the data for purposes of today’s
NODA.
Dated: July 27, 2006.
Brian McLean,
Director, Office of Atmospheric Programs.
[FR Doc. E6–12628 Filed 8–3–06; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[FRL–8205–9]
Proposed CERCLA Administrative
Cost Recovery Settlement; Industrial
Chrome Plating, Incorporated
Environmental Protection
Agency.
ACTION: Notice; request for public
comment.
AGENCY:
In accordance with Section
122(i) of the Comprehensive
Environmental Response,
Compensation, and Liability Act, as
amended (‘‘CERCLA’’), 42 U.S.C.
9622(i), notice is hereby given of a
proposed administrative settlement for
recovery of past response costs
concerning the Industrial Chrome
Plating Time-Critical Removal Site in
Portland, Oregon with the following
settling party: Industrial Chrome
Plating, Incorporated (ICP). The
settlement requires the settling party to
pay $66,000.00 to the Hazardous
Substance Superfund. The settlement
includes a covenant not to sue the
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SUMMARY:
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settling party pursuant to Section 107(a)
of CERCLA, 42 U.S.C. 9607(a). For thirty
(30) days following the date of
publication of this notice, the Agency
will receive written comments relating
to the settlement. The Agency will
consider all comments received and
may modify or withdraw its consent to
the settlement if comments received
disclose facts or considerations which
indicate that the settlement is
inappropriate, improper, or inadequate.
The Agency’s response to any comments
received will be available for public
inspection at the U.S. EPA Region 10
offices, located at 1200 Sixth Avenue,
Seattle, Washington 98101.
DATES: Comments must be submitted on
or before September 5, 2006.
ADDRESSES: The proposed settlement is
available for public inspection at the
U.S. EPA Region 10 offices, located at
1200 Sixth Avenue, Seattle, Washington
98101. A copy of the proposed
settlement may be obtained from Carol
Kennedy, Regional Hearing Clerk, U.S.
EPA Region 10, 1200 Sixth Avenue,
Mail Stop ORC–158, Seattle,
Washington 98101; (206) 553–0242.
Comments should reference the
Industrial Chrome Plating Time-Critical
Removal Site in Portland, Oregon and
EPA Docket No. CERCLA–10–2006–
0035 and should be addressed to Dean
Ingemansen, Assistant Regional
Counsel, U.S. EPA Region 10, Mail Stop
ORC–158, 1200 Sixth Avenue, Seattle,
Washington 98101.
FOR FURTHER INFORMATION CONTACT:
Dean Ingemansen, Assistant Regional
Counsel, U.S. EPA Region 10, Mail Stop
ORC–158, 1200 Sixth Avenue, Seattle,
Washington 98101; (206) 553–1744.
SUPPLEMENTARY INFORMATION: The ICP
Site, a former chrome plating facility, is
located in a predominantly residential
neighborhood on the southeast corner of
NE 62nd Avenue and NE Hassalo Street
in Portland, Oregon. In July 2001, EPA
was requested by the Oregon
Department of Environmental Quality
(ODEQ) to conduct a time-critical
removal action at the Site due to
evidence of chrome plating wastes
having leaked onto the ground and into
the subsurface at the Site. When EPA
began the removal action on August 27,
2001, there were chromium and leadcontaminated soils, plating wastes, and
other hazardous substances at the Site.
In order to get at the subsurface
contamination, the buildings at the Site
had to be torn down. Removal of the ICP
building, liquid wastes, and soils was
completed at the end of November 2001.
Soils were excavated to a maximum
depth of 20 feet below grade.
Approximately 4,000 gallons of chromic
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44291
acid was pumped from on-site dip tanks
and holding tanks to a tanker truck and
delivered to Burlington Environmental
in Kent, Washington, for proper
disposal. Another 100 gallons and 500
pounds of hazardous substances
including paint wastes, corrosive
liquids, mercury, and PCB wastes were
packed and transported to Philip
Services, Incorporated, in Washington
state. The excavation resulted in 4,718
tons of hazardous wastes shipped to
U.S. Ecology in Grand View, Idaho, and
1,098 tons of special waste delivered to
the Waste Management Hillsboro,
Oregon, landfill. A protective asphalt
cap was placed over the entire Site to
prevent surface water infiltration. The
settlement requires payment of
$66,000.00, an amount equal to the fair
market value of the real property owned
by ICP, which is the only asset of ICP,
a defunct Oregon corporation. ICP has
proposed to sell this property in order
to pay the settlement amount. In
addition, the settlement requires (and
ICP has already placed) a deed notice on
the title to the Site property. This deed
notice notifies all owners of this
property of the need to maintain the
integrity of the asphalt cap, and of the
need to contact the ODEQ if the
property owner decides to build on the
Site or otherwise puncture or destroy
the asphalt cap. ODEQ has issued a
conditional ‘‘No Further Action’’ letter
for the Site conditioned upon, among
other things, the property owner
maintaining the integrity of the cap.
Dated: July 28, 2006.
Ron Kreizenbeck,
Acting Regional Administrator, Region 10.
[FR Doc. E6–12624 Filed 8–3–06; 8:45 am]
BILLING CODE 6560–50–P
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
Environmental Protection
Agency (EPA).
ACTION: Notice of application and public
comment period.
AGENCY:
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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Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Notices
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
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colletti.john@epa.gov. Please send a
copy to johnsoj1@michigan.gov. 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 selfaddressed stamped envelope.
FOR FURTHER INFORMATION CONTACT: John
Colletti at the above address by phone
at (312) 886–6106, or by e-mail at
colletti.john@epa.gov.
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
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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
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Federal Register / Vol. 71, No. 150 / Friday, August 4, 2006 / Notices
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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
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requiring permittees to develop a
Residuals Management Program.
and will be mailed to interested persons
at least 30 days prior to the hearing.
III. Indian Country
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.
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
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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.
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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
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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 costeffective 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
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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]
BILLING CODE 6560–50–P
FEDERAL ACCOUNTING STANDARDS
ADVISORY BOARD
Notice of New Exposure Draft;
Interpretation: Items Held for
Remanufacture
Board Action: Pursuant to 31 U.S.C.
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amended, and the FASAB Rules of
Procedure, as amended in April, 2004,
E:\FR\FM\04AUN1.SGM
04AUN1
Agencies
[Federal Register Volume 71, Number 150 (Friday, August 4, 2006)]
[Notices]
[Pages 44291-44294]
From the Federal Register Online via the Government Printing 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
[[Page 44292]]
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 colletti.john@epa.gov. Please send a copy to
johnsoj1@michigan.gov. 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 colletti.john@epa.gov.
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
[[Page 44294]]
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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