[Federal Register Volume 61, Number 238 (Tuesday, December 10, 1996)]
[Notices]
[Pages 65047-65053]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-31274]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5655-4]
State Program Requirements; Approval of Application by Oklahoma
to Administer the National Pollutant Discharge Elimination System
(NPDES) Program
AGENCY: Environmental Protection Agency.
ACTION: Final approval of the Oklahoma Pollutant Discharge Elimination
System under the Clean Water Act.
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SUMMARY: On November 19, 1996, the Regional Administrator for the
Environmental Protection Agency (EPA), Region 6, approved the
application by the State of Oklahoma to administer and enforce the
National Pollutant Discharge Elimination System (NPDES) program for
regulating discharges of pollutants into waters of the State. The
authority to approve state programs is provided to EPA in Section
402(b) of the Clean Water Act (CWA). The approved state program i.e.,
the Oklahoma Pollutant Discharge Elimination System (OPDES) program is
a partial program to the extent described in this Notice (see section
titled ``Scope of the OPDES program), which will operate in lieu of the
EPA administered NPDES program pursuant to Section 402 of the CWA. The
OPDES program will be administered by the Oklahoma Department of
Environmental Quality (ODEQ). In making its decision, EPA has
considered all comments and issues raised during the publicly noticed
comment period. Summaries of the comments and EPA responses are
contained in this notice. The comments and public hearing record are
contained in the administrative record supporting this notice.
EFFECTIVE DATE: November 19, 1996. Because CWA section 301(a) prohibits
new discharges until they are authorized by an NPDES permit, this
action is immediately effective to avoid further suspension of
permitting actions in Oklahoma and the unnecessary burden such a
suspension would impose on new dischargers.
FOR FURTHER INFORMATION CONTACT: Ms. Ellen Caldwell at U.S. EPA, Region
6, Water Quality Protection Division, 1445 Ross Avenue, Dallas, Texas
75202, or by calling (214) 665-7513, or electronically at
[email protected]
or Norma Aldridge, Department of Environmental Quality, Water Quality
Division, 1000 N.E. 10th Street, Oklahoma City, Oklahoma 73117-1212, or
by calling (405) 271-5205.
SUPPLEMENTARY INFORMATION: Oklahoma's application for OPDES program
approval was submitted on June 10, 1996, and final supplements were
received on August 20, 1996. The documents were described in the
Federal Register Notice of August 29, 1996, (61 FR 45420) in which EPA
requested comments and gave notice of public hearing. Further notice
was also provided by way of publication published on August 28, 1996,
in The Lawton Constitution, the Daily Oklahoman, the Tulsa World, the
McAlester News Capital & Democrat, the Guymon Daily Herald, and the
Woodward News. Copies of the application were made available at the
addresses below and could also be purchased from the State for the cost
of $358.65 (the cost of the principal documents, i.e the Attorney
General's Statement, Memorandum of Agreement, Program Description, and
the Enforcement Management System all without their associated
appendices is $163.35). An electronic copy of the documents stored on
computer disk was provided at no cost to interested parties which
supply disks to ODEQ for that purpose. (Citizens may still request a
disc copy and should supply 3 new, 3.5'' high density/double sided
microdisk. The documents will be in WordPerfect 6.0.) EPA provided
copies of the public notice to permitted facilities, Indian tribes, and
other federal and state agencies.
As a part of the public participation process, both a public
meeting and hearing were held in MidWest City, Oklahoma, on September
30, 1996. The public meeting provided as an informal question and
answer session, and began
[[Page 65048]]
at 2 pm ending at 4:30 pm. The hearing started at 7 pm and lasted until
7:30 pm. Oral comments were recorded during the hearing and are
contained in the administrative record supporting this action. Written
comments were accepted by EPA through October 21, 1996. All comments
presented during the public comment process, either at the hearing or
in writing, were considered by EPA in its decision. EPA's responses to
the issues raised during the comment period are contained in the
Responsiveness Summary provided in this notice. A copy of EPA's
decision and its Responsiveness Summary has been sent to all commenters
and interested parties (those persons requesting to be on the mailing
list for EPA actions in Oklahoma).
Copies of the final program documents for the OPDES program are
available to the public during normal business hours, Monday through
Friday, excluding holidays, at:
EPA Region 6, 12th Floor Library, 1446 Ross Avenue, Dallas, Texas
75202, (214) 665-7513;
ODEQ Headquarters, Department of Environmental Quality, Water Quality
Division, 1000 N.E. 10th Street, Oklahoma City, Oklahoma 73117-1212.
The Regional Administrator notified the State of the program
approval decision by letter dated November 19, 1996, and notice of
EPA's final decision has been published in the newspapers in which the
public notice of the proposed program appeared (listed above). As of
November 19, 1996, EPA suspended issuance of NPDES permits in Oklahoma
(except for those permits which EPA retained jurisdiction as specified
below in the section titled ``Scope of the OPDES Program''). The
State's OPDES program will implement federal law and operate in lieu of
the EPA-administered NPDES program. EPA does, however, retain the right
to object to OPDES permits proposed by ODEQ, and if the objections are
not resolved, to issue the permit itself.
On May 8, 1996, EPA issued a final rule amending minimum State
program requirements. The amendment explicitly requires that all states
that seek to administer an NPDES program must provide an opportunity
for judicial review in state court of final permit decisions that is
sufficient to provide for, encourage, and assist public participation
in the permitting process. The Attorney General Statement submitted by
Oklahoma addresses the issue of judicial standing, asserting that
Oklahoma complies with the review criteria expressed in 61 FR 20972
(May 8, 1996). Based on a review of Oklahoma legal authority, the
explanation provided in the State's AG Statement and discussions with
ODEQ attorneys, it appears that Oklahoma law meets the amended State
NPDES program requirement.
Changes to the OPDES Proposed Documents
No changes were made to the proposed OPDES program documents based
on information obtained in the public comments received, however, EPA
has requested two changes to the Memorandum of Agreement (MOA)
clarifying how the OPDES program will be consistent with federal
requirements and policy. These changes are minor and do not require
additional public notice. No commenter noted these portions of the MOA
or issues in any submitted comments.
1. Section C of the Oklahoma/EPA MOA (Jurisdiction over Permits)
has been revised to clarify that EPA is retaining authority for the
administration of EPA issued general permits, and not NPDES program
authority over those classes of discharges which are covered by those
general permits (See below ``Scope of the OPDES Program'' A.6.). This
would include the general permit for discharges from UST remediation
water discharges and the following storm water general permits:
Baseline construction storm water general permit (57 FR 41209), NPDES
permit numbers OKR10*###; Baseline non-construction storm water general
permit (57 FR 41297), NPDES permit numbers OKR00*###; and Multi-sector
storm water general permit (60 FR 51108), NPDES permit numbers
OKR05*###. (For an individual facility's permit number, the * is a
letter and the #'s are numbers--e.g. OKR00Z999). The revised language
is as follows:
EPA will temporarily retain authority to administer general permits
for:
--All existing discharges of storm water associated with industrial or
construction activity (40 CFR 122.26(b)(14)), including allowable non-
storm water, authorized to discharge under an NPDES storm water general
permit as of the date of program assumption.
--New discharges of storm water associated with industrial or
construction activity, including allowable non-storm water, eligible
for coverage under an NPDES storm water general permits, excluding new
discharges subject to a new source performance standard.
--All existing and new discharges resulting from implementing
corrective action plans, as required by 40 CFR 280, for cleanup of
groundwater contaminated by releases from Petroleum Underground Storage
Tank Systems (UST).
Case-by-case transfers for individual storm water and UST
dischargers will be made using the following procedures:
--ODEQ may request early transfer of an individual facility or a class
of storm water dischargers at any time. All requests will be in writing
and will include a brief rationale.
--If ODEQ and EPA agree to provide an individual permit in lieu of
general permit coverage, the State will include outfalls for the
affected discharges in a draft OPDES permit and the public notice of
the draft permit will concurrently notice the transfer of authority for
the facility's discharges to ODEQ.
--A permittee with a wastewater discharge or storm water discharge that
is not eligible for coverage under an EPA storm water general permit
must apply to DEQ for an individual permit.
Final transfer of general permitting authority for storm water and
UST discharges will be made using the following procedures:
--No later than three years from the date of program assumption, the
State will make the necessary changes to State statutes in order to
qualify for general permitting authority.
--Within 90 days of the effective date of the new statutes, the State
will submit a supplemental Attorney General's statement, along with a
copy of the relevant statutes, certifying that the Executive Director
has the authority to issue general permits.
--If EPA concurs with the Attorney General's statement, the Agency will
publish notice of the transfer of general permits for the remaining
storm water and UST discharges to ODEQ and send a copy to the
appropriate mailing list.
--Once the Executive Director of ODEQ assumes authority in accordance
with a promulgated final rule to issue general permits, the State will
become the permitting authority (subject to EPA oversight) for all
discharges of storm water associated with industrial and construction
activity, UST remediation discharges. EPA storm water general permits
and any effective general permits for UST remediation discharges will
then be transferred to ODEQ for administration. Within 30 days of the
transfer of authority, EPA will provide
[[Page 65049]]
ODEQ with a list of all facilities authorized to discharge under these
general permits.
2. Oklahoma proposed a regulation for consideration for self-
reporting of noncompliance (Title 252:2-117). At the time of this
authorization the regulation is not finalized. As agreed by EPA and
ODEQ, language has been added to page 39 of the MOA ensuring that the
final regulation will be consistent with NPDES program requirements.
The new language is as follows:
``The DEQ's proposed audit rule and any associated policy and/or
guidance which may be used to mitigate penalties for delegated
facilities under the OPDES program, must receive final EPA
concurrence prior to implementation by the State.''
Once the regulation is finalized, ODEQ will send a revised Program
Description and/or Enforcement Management System explaining the rule's
implementation with regard to the OPDES program. The State will also
send a supplemental Attorney General's Statement to ensure the
regulation will be consistent with NPDES requirements. To the extent
EPA finds that a final rule modifies or supplements the OPDES program
and constitutes a program revision, in accordance with 40 CFR 123.62
these revisions of the original OPDES program will be publicly noticed
in the Federal Register and major newspapers in the State to provide
for public comment on the revision.
Scope of the OPDES Program and Clarifications on EPA Authority and
Oversight
All NPDES files under the jurisdiction of ODEQ will be transferred
from EPA to the state within 30 days. NPDES permits under ODEQ's
jurisdiction will become state administered OPDES permits and will be
reissued (upon expiration) or modified by the ODEQ. All permits brought
to public notice by ODEQ after this authorization and under its OPDES
authority will be OPDES permits providing NPDES authorization to those
dischargers.
A. EPA Authority
Oklahoma's OPDES program is a partial program, which conforms to
the requirements of section 402(n)(3) of the Clean Water Act. The OPDES
program applies to all discharges covered by the authority of ODEQ.
This includes most discharges of pollutants subject to the federal
NPDES program (e.g. municipal wastewater discharges, pretreatment, and
most industrial point source discharges, and point source discharges
from federal facilities), including the disposal of sewage sludge (in
accordance with section 405 of the Act and 40 CFR part 503). ODEQ does
not have regulatory authority over facilities regulated by other
agencies in the State of Oklahoma, therefore EPA will remain the NPDES
regulatory authority for the following discharges:
1. Agricultural industries regulated by the Oklahoma Department of
Agriculture including concentrated animal feeding operations and
silviculture. EPA will remain the NPDES permitting authority for all
point source discharges associated with agricultural production,
services, silviculture, feed yards, livestock markets and animal
wastes.
2. Oil and Gas exploration and production related industries and
pipeline operations regulated by the Oklahoma Corporation Commission.
EPA will retain NPDES authority over these industries and their
discharges to surface waters of the state.
3. Discharges in Indian Country. The State of Oklahoma does not
seek jurisdiction over Indian Country. EPA will retain NPDES authority
to regulate discharges in Indian Country (as defined in 18 U.S.C.
1151). The state of Oklahoma has undertaken steps to revise regulation
252:605-1-3(c) clarifying ODEQ does not seek to issue authorized OPDES
permits to discharges in Indian Country. EPA and ODEQ will work
together with tribal authorities to resolve questions of permitting
authority for individual discharges.
4. Discharges of radioactive materials regulated by the federal
government (i.e. those radioactive materials covered by the Atomic
Energy Act of 1954, as amended (42 U.S.C. 2011 et. seq.)). EPA does not
have the authority to approve the OPDES program to regulate radioactive
wastes governed by the Atomic Energy Act. The regulatory authority for
radioactive materials will remain under the jurisdiction of the U.S.
Department of Energy and the Nuclear Regulatory Commission. (Some
industrial discharges which contain very low level radioactive wastes
(e.g. manufacturers of watches may discharge trace amounts of radium,
and hospital wastes sometimes contain iodine isotopes) which are not
regulated under the Atomic Energy Act and may be regulated by EPA; upon
authorization of the OPDES program, the authority to regulate those
discharges may become the responsibility of ODEQ.)
5. Oklahoma Ordinance Works Authority (OOWA). EPA will retain
enforcement authority for OOWA (NPDES permit No. OK0034568), located in
Pryor, Oklahoma, and all industries served by this facility. ODEQ is
legally responsible for implementing the pretreatment program at OOWA.
6. Authority over EPA issued general permits: EPA will retain
authority to administer general permits in accordance with 40 CFR
123.1. As explained in the Federal Register Notice proposing approval
of the OPDES program, Oklahoma is revising its statutes and regulations
to provide the Executive Director of the Oklahoma Department of
Environmental Quality with the full authority to issue general permits
under the OPDES program. This revision of Oklahoma Law is to ensure
that the Oklahoma general permitting program is consistent with the
requirements of 40 CFR 123.25(c). In the Federal Register Notice
concerning the proposal of the OPDES program, EPA asserted that ``Until
the state completes this transfer of authority, EPA will retain full
permitting and enforcement authority for those discharges which are
covered, or proposed to be covered by EPA issued general permits.'' EPA
provided that it would transfer this authority and the administration
of the general permits to the State once ODEQ has revised its program
to include general permitting authority. EPA now wishes to clarify that
the State has program authority over all classes of discharges (except
as listed above). EPA will not retain program authority over those
discharges except to the extent it will continue to administer EPA
issued general permits.
This clarification will translate into only minor changes for
permittees in the State of Oklahoma. Until the transfer of general
permit authority to ODEQ, EPA will continue to administer those general
permits it has issued or proposed in Oklahoma. Until otherwise notified
by EPA or the State, permittees covered by those general permits will
continue to report all compliance information to EPA Region 6. Also,
any facility eligible for coverage under these permits will send its
notice of intent to EPA rather than ODEQ. Until otherwise notified by
the State or EPA, all Notices of Intent and Termination (NOIs and NOTs)
for coverage under EPA's general permits for storm water (only) should
continue to be sent to the EPA NOI Processing Center (mail code 4203),
401 M Street, SW, Washington, DC 20460. The only variation from the
proposed program will be authority to reissue the general permits. ODEQ
is the permitting authority, and as such, will reissue the general
permits once that authority has been transferred to ODEQ. EPA may not
reissue the general permits once they have expired. If ODEQ has not
been able to revise its program to include general permitting authority
prior to the
[[Page 65050]]
expiration of a general permit, it could issue individual permits
instead. In the interim, any discharger covered by an EPA general
permit may request that its discharge be covered by an individual
permit issued by the State as described in the MOA language quoted
above (Changes to the OPDES Proposed Documents #1).
The Federal Register Notice of August 29, 1996, proposing approval
of the OPDES program (61 FR 45420-45426), at page 45422, paragraph 2
refers to ``Phased Program Authority.'' To eliminate any confusion that
EPA meant that Oklahoma's NPDES Program is a ``partial and phased''
program in the context of Section 402(n)(4) of the Clean Water Act, 33
USC 1342(n)(4), EPA is clarifying that the word ``phased'' was used in
a generic sense and not the statutory meaning of a ``phased program''
as that term is used in 402(n)(4). A phased program in accordance with
CWA section 402(n)(4) provides a state up to 5 years to assume
administration for categories of dischargers considered ``point
sources'' by the CWA. ODEQ has the legal authority to administer the
program to include those discharges covered by EPA's general permits
using individual permits, thus, EPA considers the OPDES program as
covering all discharges under the jurisdiction of the ODEQ in Oklahoma.
Therefore, Oklahoma's program is not a ``phased'' program as that term
is used in section 402(n)(4) of the Clean Water Act.
7. Status of applications, proposed permits, contested permit
actions, and unresolved EPA enforcement actions: Except for the files
listed below, all pending NPDES permit applications and issued NPDES
permits under jurisdiction of ODEQ will be transferred to Oklahoma
within 30 days of the approval of the OPDES program. In accordance with
the signed MOA, EPA will retain temporary authority for all proposed
permits until final issuance; permits contested under evidentiary
hearing proceedings until those are resolved; and compliance files and
authority for all open enforcement orders until such time as ODEQ has
issued parallel orders or EPA has resolved the enforcement action.
Proposed Permits: EPA shall retain permit decision-making authority
over permits which have been publicly noticed until they are issued and
effective. Once these permits are effective, they will be transferred
to ODEQ unless contested. The permit files will be transferred to the
state as the permits become effective.
Contested Permit Actions: EPA will retain permits for which
variances or evidentiary hearings have been requested until such time
as they are resolved. As each request is resolved, EPA will notify ODEQ
and transfer jurisdiction of the permit to ODEQ. EPA shall also
maintain enforcement lead over discharge permits with a pending
evidentiary hearing request; these will be transferred to the state
upon resolution of the issue for which the hearing was requested.
Enforcement Actions: EPA Region 6 will retain primary enforcement
authority after the date the OPDES program is approved for a number of
facilities which have unresolved compliance issues. These permittees
will continue to report to EPA on all compliance issues including
regular submittals of Discharge Monitoring Reports for their NPDES
permits. Authority for these permits can subsequently be transferred to
the State one of two ways: (1) The outstanding compliance issue can be
resolved and the permittee has returned to compliance, or, (2) the
State can issue a parallel administrative action to address the
outstanding compliance issue. As a practical consideration, enforcement
authority for municipal or county facilities that are operated by the
same governmental entity will not be transferred to the State as long
as one of its major facilities has an unresolved compliance issue.
NOTE: EPA in coordination with ODEQ will inform all permittees in
writing of their reporting responsibilities. Permittees should continue
to report as specified by both their State and Federal permits until
otherwise notified.
B. Status of Regulation Changes and Corrections
1. Indian Country. Amendments to regulation OAC 252:605-1 will be
presented to ODEQ's Environmental Quality Board (EQB) in March for
approval.
2. General Permitting Authority. This change of authority will be
proposed to the 1997 Legislative session as an amendment to 27A O.S.
Section 2-14-181 et seq.
3. Finalization of Audit Privilege Regulation. This proposed
regulation will be before the EQB on November 26, 1996, and will be
codified as OAC 252:2-11-7 once the rulemaking process is completed.
Responsiveness Summary
The following is a summary of the issues raised by persons
commenting on EPA's proposed approval and EPA's responses to those
issues.
1. Issue: EPA received many comments from industry, businesses,
associations, and municipalities supporting authorization of the OPDES
program. These commenters cite examples of good working relationships
with the ODEQ and confidence in the technical skill and ethics of the
staff and management of that agency. These commenters also point out
the benefits of having a system run at the state level that is more
readily accessible and cost effective than the system of having both a
state and federal permitting program.
Response: EPA is pleased with the apparent confidence the citizens
of Oklahoma have in their Department Of Environmental Quality. EPA
believes that approval of the OPDES program will provide both an
environmentally protective permitting program, as well as one which
will be responsive to the needs of citizens and businesses in Oklahoma.
2. Issue: Some municipalities expressed concern about the need to
raise fees to support the OPDES program. These commenters support EPA
approval of the program, while calling for more proportional fee system
or financial support for municipalities. Only one municipality
supported the authorization of the OPDES program conditioned upon no
additional cost to ``mandated participants'' of the program.
Response: States applying to administer the NPDES program must
establish that they have the financial ability and structure to run the
program which EPA would approve (40 CFR 123.21). In the sources of
funding identified by ODEQ for the OPDES program there is a fee system
for permittees. The structure and necessity for the fee system was
researched by ODEQ, reviewed by EPA, and reevaluated by an independent,
third party study. EPA is satisfied the fee system outlined in the
OPDES program is appropriate.
3. Issue: A national trade association sent comments objecting to
EPA's assertion that authorization of a state program under NPDES was a
``federal action'' requiring consultation under section 7 of the
Endangered Species Act (ESA). The association draws the conclusion from
the ESA that EPA is not authorized nor is under any obligation to
consult on any action that would not jeopardize a species. The
association asserted that EPA approval of a state program is no more of
a ``federal'' action than its review of state-issued permits; that
EPA's authorization is not a ``discretionary'' action and therefore is
not subject to the requirements of ESA. The commenters added that EPA
is under no obligation to initiate formal consultation where the action
is not
[[Page 65051]]
likely to adversely affect listed species. The commenters believe that
because the state must administer the same program EPA does, there is
no change to the ``environmental baseline,'' and therefore jeopardy ``
* * * is not remotely likely.'' The commenters object to the conditions
of the agreements reached by EPA, ODEQ and FWS during informal
consultation, and believes them to be equivalent to ``reasonable and
prudent measures'' more appropriate to a formal consultation. The
commenter does not believe EPA has the authority to object to state
issued permits for their potential effects on listed or proposed
species. Additionally, the commenter does not agree with EPA, ODEQ, and
FWS to include proposed species or habitat in the consultation
agreements.
Response: The commenters refer to ``EPA's review and approval of a
state permitting program'' and compares it to EPA's review of state
issued permits. It is from this comparison that some confusion for the
commenters may arise. The approval of a state program under section 402
of the CWA is a federal authorization and not simply a review of the
state's documents. EPA views the approval as ``discretionary'' in that
it must work with the state to develop mutual agreements in the MOA
which is then signed by both agencies.
The regulations implementing the ESA includes in the term ``action
* * * all activities or programs of any kind authorized, funded,
carried out, in whole or in part, by Federal agencies in the U.S. or on
the high seas.'' (50 CFR 402.02) When an action is determined by the
agency to have the potential to ``affect'' listed species or critical
habitat, the agency must consult or confer with the FWS (and for marine
species National Marine Fisheries Service) to determine if species will
be adversely effected. The agencies involved may elect to start with
informal consultation. During this optional process the FWS `` * * *
may suggest modifications to the action that the Federal agency and any
applicant could implement to avoid the likelihood of adverse effects to
listed species or critical habitat.'' (50 CFR 402.13) This process may
also be applied to avoid jeopardy of a species which have been proposed
for listing (50 CFR 402.10). Including agency ``conferences'' on
proposed species and their habitat helps avoid the need for
reinitiation of consultation after proposed species have been formally
listed.
The consultation conducted by Region 6, ODEQ, and FWS applies to
future actions by the state which could jeopardize listed or proposed
species. No environmental baseline exists for the proposed state run
program. If any ``programmatic'' environmental baseline exists, it
applies only to past permitting actions issued by EPA and not future
actions that may be issued by the State. A state program is operated in
lieu of the federally administered NPDES program. The program is based
not on CWA and its implementing regulations, but instead on state
regulations and statutes. A state program cannot be judged on the
baseline of the federal system that preceded it.
While it may not be clear that the section 7 consultation is
specifically required for a program authorization, ESA and its
implementing regulations do not restrict any agency from voluntarily
consulting and conferring with Fish and Wildlife Service on actions it
believes may affect listed species. The commenter for the association
himself stated that `` * * * whether EPA was required to consult with
FWS is not the issue * * *.'' EPA working cooperatively with ODEQ and
FWS did informally confer and consult on species and habitat protection
in the State of Oklahoma. This cooperation resulted in the agreements
cited by the commenters. Region 6 believes consultation conducted on
the authorization of a state NPDES program is consistent with the
intent, definitions and the requirements of the ESA and CWA. The
conditions of the agreements were placed in the EPA/ODEQ MOA to ensure
that EPA and ODEQ had clear responsibilities with regard to carrying
out the agreements.
EPA's authority to object to state issued permits is outlined in 40
CFR 123.44 which provides that EPA may object to the issuance of a
permit which does not comply with the CWA, regulations, or the MOA; or,
would in any other respect be outside the requirements of the CWA or
its implementing regulations. CWA section 301(b)(1)(C) incorporates in
the Act's protection any more stringent requirements required by any
other Federal law or regulation. Region 6 does not believe that the
conditions of the consultation agreements go beyond the authority of
EPA to object to state issued NPDES permits.
4. Issue: A citizens group located in Grove, Oklahoma expressed
concern that they had not been satisfied with ODEQ response to
complaints they had made regarding the water quality of Cave Springs
and Honey Creek, and the discharge of wastewater from Simmons
Industries in Missouri. These citizens were bothered that the tone of
the notices proposing this program were ``pro-industry.'' These
citizens ask DEQ why it feels competent to take responsibility for the
NPDES program; and ask EPA if it is not an important link in the
protection of environmental resources. These citizens also express
concern regarding agricultural industries.
Response: While the commenters may have a legitimate concern about
the impacts of Simmons Industries on the water quality of Cave Springs
and Honey Creek, the wastewater discharges cited by the citizens are
regulated by the Missouri Department of Natural Resources (MDNR), not
ODEQ. ODEQ may comment on the issuance of permits outside its
jurisdiction which may impact water quality in Oklahoma, and may appeal
to EPA if permits issued in Missouri do not meet water quality
standards for that stream segment in Oklahoma. However ODEQ is not
authorized to take enforcement action against dischargers in
neighboring states. It is the understanding of Region 6 that ODEQ has
communicated its concerns and those of the citizens to MDNR and EPA,
requesting action to protect the water quality in these streams.
Recently ODEQ has been communicating with Missouri's authorized agency
recommending more stringent limits in the permit which MDNR is
currently drafting.
While ODEQ does not have the authority to address pollutants from
agricultural industries, ODEQ is working to address all point and non-
point sources of pollutants within its jurisdiction. Authorization of
the OPDES program under the CWA may help Oklahoma develop more
comprehensive programs to improve water quality in the State. However,
EPA's specific authorization of the OPDES program does not extend to
programs regulating air and solid wastes, nor does it include point
sources which are not within the jurisdiction of ODEQ or the CWA (see
Scope of the OPDES Program and Clarifications on EPA Authority and
Oversight. A.1. above).
The written agreements of this authorization process will formalize
the partnership which has existed between EPA and ODEQ since the
Oklahoma agency's formation, and will provide the structure for the
side-by-side relationship between the two agencies. Region 6 will
continue to be ready and available to work with ODEQ and the citizens
of Oklahoma to ensure the environment is protected.
The OPDES program, the 43rd state program to be authorized under
section 402 of the CWA, includes pretreatment, federal facilities and
sewage sludge.
[[Page 65052]]
State NPDES Program Status
----------------------------------------------------------------------------------------------------------------
Approved to Approved
Approved state regulate Approved state general
NPDES permit federal pretreatment permits
program facilities program program
----------------------------------------------------------------------------------------------------------------
Alabama......................................... 10/19/79 10/19/79 10/19/79 06/26/91
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......................................... 05/01/95 -- 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
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
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 -- 01/22/90
Ohio............................................ 03/11/74 01/28/83 07/27/83 08/17/92
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
Tennessee....................................... 12/28/77 09/30/86 08/10/83 04/18/91
Utah--(06/14/96 Approved Sludge Prgm)........... 07/07/87 07/07/87 07/07/87 07/07/87
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
Wyoming......................................... 01/30/75 05/18/81 -- 09/24/91
---------------------------------------------------------------
Totals...................................... 42 36 30 31
----------------------------------------------------------------------------------------------------------------
Number of Fully Authorized Programs (Federal Facilities, Pretreatment, General Permits) = 27.
Number of Fully Authorized Programs, Including Sludge = 1.
*: Phased Federal facilities & storm water programs by 2000.
Other Federal Statutes
A. National Historic Preservation Act
Section 106 of the National Historic Preservation Act (NHPA)
requires that all federal agencies must consult with the State Historic
Preservation Officer (SHPO) and the Advisory Council on Historic
Preservation (ACHP) on all federal undertakings which may affect
historic properties or sites listed or eligible for listing in the
National Register of Historic Places. Regulations outlining the
requirements of a section 106 consultation on a federal undertaking are
found at 36 CFR part 800. EPA's approval of the State NPDES permitting
program under section 402 of the Clean Water Act is a federal
undertaking subject to this requirement, but the State's subsequent
issuance of OPDES permits may not be. EPA has thus consulted in
accordance with section 106 of the NHPA to assure protection of
eligible properties will be provided in connection with State permit
actions. In the consultation, EPA, the SHPO and ODEQ outlined
procedures by which ODEQ and the SHPO will confer on permit actions
likely to affect historic properties. These processes are reflected in
a memorandum of understanding signed by EPA and the SHPO on EPA's
oversight role and objection procedures on permits when the two state
agencies can not agree on the protection of historic properties. The
EPA/ODEQ MOA includes conditions for EPA and ODEQ to follow to ensure
that the requirements of the consultation with the SHPO are met.
B. Endangered Species Act
Section 7 of the Endangered Species Act (ESA) requires that all
federal agencies consult on federal actions which may affect federally
listed species to insure they are unlikely to jeopardize the continued
existence of those species or adversely modify their critical
[[Page 65053]]
habitat. Regulations controlling consultation under ESA section 7 are
codified at 50 CFR part 402. EPA's approval of the State permitting
program under section 402 of the Clean Water Act is a federal action
subject to this requirement, but the State's subsequent OPDES permit
actions are not. EPA completed informal consultation with the U.S. Fish
and Wildlife Service (FWS or the Service). In the consultation, EPA,
the Service, and ODEQ outlined procedures by which ODEQ and FWS, will
confer on permits which are likely to affect federally listed species.
These processes are reflected in a Memorandum of Understanding between
the State and FWS. In addition, a consultation agreement has been
reached between EPA and FWS on EPA's oversight role and objection
procedures when ODEQ and FWS cannot agree on the protection of species
in an individual State permit action. These conditions are reflected in
the EPA/ODEQ MOA.
I hereby authorize the OPDES program in accordance with 40 CFR part
123.
Dated: November 19, 1996.
Jane N. Saginaw,
Regional Administrator.
[FR Doc. 96-31274 Filed 12-9-96; 8:45 am]
BILLING CODE 6560-50-P
