E6-18850. Water Pollution Control; Approval of Modification to Michigan's Approved National Pollutant Discharge Elimination System Permitting Program To Administer a Partial State Sewage Sludge Management Program

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice; approval of application.

SUMMARY:

On September 28, 2006, pursuant to Section 402(b) of the Clean Water Act (CWA), the Acting Regional Administrator for EPA, Region 5, approved the State of Michigan's modification of its existing National Pollutant Discharge Elimination System (NPDES) program to include the administration and enforcement of a partial state sewage sludge (biosolids) management program where it has jurisdiction.

FOR FURTHER INFORMATION CONTACT:

John Colletti, at [phone], NPDES Programs Branch, (WN-16J), EPA, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604-3590, or electronically at [e-mail].

SUPPLEMENTARY INFORMATION:

Throughout this document “we”, “us”, or “our” means EPA.

Table of Contents

I. Introduction

II. Was notice provided seeking public comments on Michigan's program submittal?

III. Was a public hearing held?

IV. Did EPA receive any public comments?

V. Does EPA's approval affect Indian Country in Michigan?

VI. Conclusion

VII. Federal Register Notice of Approval of State NPDES Programs or Modifications

VIII. Administrative Requirements

A. National Historic Preservation Act

B. Other Provisions

I. Introduction

Michigan's application to modify its existing NPDES program to administer and enforce a partial state biosolids management program was submitted on March 28, 2002. Specifically, the state sought approval of a biosolids management program which addresses the land application of biosolids. On April 21, 2005, the state amended its submittal limiting the state's request to the activity mentioned above within the state except if that activity occurs within “Indian Country” as defined in 18 U.S.C. 1151 and applicable case law. The state's biosolids management program does not extend to Indian Country, and will not include lands within the exterior boundaries of Indian reservations within or abutting the State of Michigan. Michigan did not seek approval for the surface disposal of biosolids, the landfilling of biosolids, the incineration of biosolids, or the land application of domestic septage. The biosolids management program is administered by the Michigan Department of Environmental Quality (MDEQ). Modifications were made to the program submittal based on discussions between EPA and MDEQ. These modifications are part of the record of the program application and review process.

II. Was notice provided seeking public comments on Michigan's program submittal?

Michigan's application was described in the August 4, 2006, Federal Register at Vol. 71, No. 150, pages 44291 to 44294, in which EPA requested public comments for a period of 45 days. Further notice was provided by way of publication in the following newspaper on August 4, 2006: The Bay City Times; The Flint Journal; The Traverse City Record-Eagle; The Grand Rapids Press; The Lansing State Journal; The Ann Arbor News, and; The Mining Journal (Marquette) in an effort to get wide coverage throughout the state. Additionally, notices were sent to all known Michigan NPDES permitted facilities that would be impacted by the program and to people or organizations that MDEQ determined might have an interest in the program application. Copies of MDEQ's application package were available for public review at the EPA Region 5 Office and at MDEQ's district offices.

III. Was a public hearing held?

A public hearing was not held. The above notice explained that a hearing had not been scheduled and how a hearing could be requested. EPA will hold a public hearing whenever the Regional Administrator finds, on the basis of requests, a significant degree of public interest. No request for a hearing was received during the public comment period and therefore, no hearing was held.

IV. Did EPA receive any public comments?

Pursuant to the public notice, we would accept written comments from the public postmarked on or before September 18, 2006. During the comment period, no comments were received.

V. Does EPA's approval affect Indian Country in Michigan?

MDEQ did not seek approval to administer and enforce the state biosolids management program for activities occurring in Indian Country. Our approval does not authorize MDEQ 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, our approval of the state's sewage sludge management program will have no effect in Indian Country where EPA continues to implement and administer the NPDES program.

VI. Conclusion

The Michigan Department of Environmental Quality has demonstrated that it adequately meets the requirements for program modification to include biosolids management (specifically, the land application of biosolids) as defined in the Clean Water Act and 40 CFR parts 123, 501, and 503.

At this time, EPA is withholding authorization to administer the biosolids management program for the surface disposal of biosolids, the landfilling of biosolids, the incineration of biosolids, the land application of domestic septage, and activities occurring in Indian Country, as mentioned above.

VII. Federal Register Notice of Approval of State NPDES Programs or Modifications

EPA must provide Federal Register notice of any action by the Agency approving or modifying a State NPDES program. The following table will provide the public with an up-to-date list of the status of NPDES permitting authority throughout the country. Today's Federal Register notice is to announce the approval of Michigan's authority to administer the sewage sludge management program.

State NPDES Program Status

State	Approved State NPDES permit program	Approved to regulate Federal facilities	Approved State pretreatment program	Approved general permits program	Approved sludge management program
Alabama	10/19/79	10/19/79	10/19/79	06/26/91
Arizona	12/05/02	12/05/02	12/05/02	12/05/02	04/01/04
Arkansas	11/01/86	11/01/86	11/01/86	11/01/86
California	05/14/73	05/05/78	09/22/89	09/22/89
Colorado	03/27/75			03/04/82
Connecticut	09/26/73	01/09/89	06/03/81	03/10/92
Delaware	04/01/74			10/23/92
Florida 1	05/01/95	05/01/00	05/01/95	05/01/95
Georgia	06/28/74	12/08/80	03/12/81	01/28/91
Hawaii	11/28/74	06/01/79	08/12/83	09/30/91
Illinois	10/23/77	09/20/79		01/04/84
Indiana	01/01/75	12/09/78		04/02/91
Iowa	08/10/78	08/10/78	06/03/81	08/12/92
Kansas	06/28/74	08/28/85		11/24/93
Kentucky	09/30/83	09/30/83	09/30/83	09/30/83
Louisiana	08/27/96	08/27/96	08/27/96	08/27/96
Maine	01/12/01	01/12/01	01/12/01	01/12/01
Maryland	09/05/74	11/10/87	09/30/85	09/30/91
Michigan	10/17/73	12/09/78	04/16/85	11/29/93	09/28/06
Minnesota	06/30/74	12/09/78	07/16/79	12/15/87
Mississippi	05/01/74	01/28/83	05/13/82	09/27/91
Missouri	10/30/74	06/26/79	06/03/81	12/12/85
Montana	06/10/74	06/23/81		04/29/83
Nebraska	06/12/74	11/02/79	09/07/84	07/20/89
Nevada	09/19/75	08/31/78		07/27/92
New Jersey	04/13/82	04/13/82	04/13/82	04/13/82
New York	10/28/75	06/13/80		10/15/92
North Carolina	10/19/75	09/28/84	06/14/82	09/06/91
North Dakota	06/13/75	01/22/90	09/16/05	01/22/90
Ohio	03/11/74	01/28/83	07/27/83	08/17/92	03/16/05
Oklahoma	11/19/96	11/19/96	11/19/96	09/11/97	11/19/96
Oregon	09/26/73	03/02/79	03/12/81	02/23/82
Pennsylvania	06/30/78	06/30/78		08/02/91
Rhode Island	09/17/84	09/17/84	09/17/84	09/17/84
South Carolina	06/10/75	09/26/80	04/09/82	09/03/92
South Dakota	12/30/93	12/30/93	12/30/93	12/30/93	10/22/01
Tennessee	12/28/77	09/30/86	08/10/83	04/18/91
Texas	09/14/98	09/14/98	09/14/98	09/14/98	09/14/98
Utah	07/07/87	07/07/87	07/07/87	07/07/87	06/14/96
Vermont	03/11/74		03/16/82	08/26/93
Virgin Islands	06/30/76
Virginia	03/31/75	02/09/82	04/14/89	04/20/91
Washington	11/14/73		09/30/86	09/26/89
West Virginia	05/10/82	05/10/82	05/10/82	05/10/82
Wisconsin	02/04/74	11/26/79	12/24/80	12/19/86	07/28/00
Wyoming	01/30/75	05/18/81		09/24/91
Totals	46	41	35	44	08
Number of Fully Authorized Programs (Federal Facilities, Pretreatment, General Permits) = 33.
Number of authorized Sludge Management Programs = 8.
1 The Florida authorizations of 05/01/95 represent a phased NPDES program authorization to be completed by the year 2000.

VIII. Administrative Requirements

A. National Historic Preservation Act

Section 106 of the National Historic Preservation Act (NHPA), 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 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.

By letter dated June 19, 2006, we requested concurrence from the SHPO that approval of MDEQ to implement a biosolids management program would not have an adverse impact on historical and archeological resources. After discussions with SHPO staff, it was concluded that concurrence was not needed because our action is not an undertaking as the Michigan SHPO would interpret it. It is still believed that program approval will have no effect on historic or archeological resources within the State of Michigan because the transferring of the program is an administrative act.

B. Other Provisions

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.

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

Dated: October 6, 2006.

Gary Gulezian,

Acting Regional Administrator, Region 5.