E8-26486. 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.

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 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, [phone], [e-mail]; or Sharon Morgan, Alaska Department of Environmental Conservation, P.O. Box 111800, 410 Willoughby Avenue, Suite 303, Juneau, AK 99811-1800, [phone], [e-mail]. 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 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, [phone], [e-mail]; or Sharon Morgan, Alaska Department of Environmental Conservation, P.O. Box 111800, 410 Willoughby Avenue, Suite 303, Juneau, AK 99811-1800, [phone], [e-mail].

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.