[Federal Register Volume 64, Number 250 (Thursday, December 30, 1999)]
[Notices]
[Pages 73552-73555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33776]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-6500-4]
State Program Requirements; Application To Administer the
National Pollutant Discharge Elimination System (NPDES) Program; Maine
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of application for approval of the Maine Pollutant
Discharge Elimination System.
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SUMMARY: The State of Maine has submitted a request for approval of the
Maine Pollutant Discharge Elimination System (MEPDES) Program pursuant
to Section 402 of the Clean Water Act. If EPA approves the MEPDES
program, the State will administer this program, which regulates the
discharges of point sources to navigable waters, subject to continuing
EPA oversight and enforcement authority, in place of the National
Pollutant Discharge Elimination System (NPDES) program now administered
by EPA in Maine. Today, EPA is requesting comments on the State's
request and providing notice of a public hearing and comment period on
that proposal. EPA will either approve or disapprove the State's
request after considering all comments it receives.
DATES: EPA Region I will hold a public hearing on February 16, 2000
beginning at 7:00 p.m. for submission of oral or written comments on
Maine's request for program approval. EPA Region I will continue to
accept written comments through February 29, 2000 at its office in
Boston, MA. EPA requests that copies of such written comments also be
provided to the Maine Department of Environmental Protection (MEDEP).
ADDRESSES: The February 16, 2000, public hearing will be held at the
Augusta Civic Center (Capital Pine Tree Room), Augusta, ME.
Written comments must be submitted to: Stephen Silva, USEPA Maine
State Office, 1 Congress Street--Suite 1100 (CME), Boston, MA 02114-
2023. EPA requests that a copy of each comment be submitted to: Dennis
Merrill, MEDEP, Statehouse Station #17, Augusta, ME 34003.
Copies of documents Maine has submitted in support of its program
approval request may be reviewed during normal business hours, Monday
through Friday, excluding holidays, at: EPA Region I, 11th Floor
Library, 1 Congress Street--Suite 1100, Boston, MA 02114-2023, 617-918-
1990 or 1-888-372-5427; and MEDEP, Ray Building, Hospital Street,
Augusta, ME.
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FOR FURTHER INFORMATION CONTACT: Stephen Silva at the address listed
above or by calling (617) 918-1561 or Dennis Merrill at the address
listed above or by calling (207) 287-7788. The State's submissions
(which comprise approximately 128 pages in the application, 382 pages
in the appendix, and 11 pages in a supplement with an additional 688
pages of attachments) may be copied at the MEDEP office in Augusta, or
EPA office in Boston, at a cost of 15 cents per page. A copy of the
entire initial submission (not including the supplement) may be
obtained from the MEDEP office in Augusta for a $20 fee.
Part of the State's program submission and supporting documentation
is available electronically at the following Internet address:
http://www.state.me.us/dep/blwq/delegation/delegation.htm
SUPPLEMENTARY INFORMATION: Section 402 of the Clean Water Act (Act)
created the NPDES program under which EPA may issue permits for the
discharge of pollutants to waters of the United States under conditions
required by the Act. Section 402 also provides that EPA may approve a
State to administer an equivalent State program upon a showing that the
State has the necessary authority and a program sufficient to meet the
Act's requirements. The basic requirements for State program approval
are listed in 40 CFR part 123. EPA Region I considers the documents
submitted by the State of Maine complete and believes they address each
of the requirements of the regulations found at 40 CFR part 123. EPA
will take final action after all public comments have been considered.
By letter dated October 13, 1999, the Governor of Maine requested
NPDES program approval and submitted a program description (including
funding, personnel requirements and organization, and enforcement
procedures), an Attorney General's statement, copies of applicable
State statutes and regulations, and a Memorandum of Agreement (MOA) to
be executed by the Regional Administrator of EPA Region I and the
Commissioner of MEDEP. EPA received this package of materials on
November 18, 1999. By letter dated December 15, 1999, Maine submitted a
supplement to its application describing its Continuing Planning
Process (cpp). This supplement was received by the EPA on December 17,
1999 and makes the application complete as of December 17, 1999.
As discussed in more detail below, Maine is applying to implement
and enforce its MEPDES program in Indian country. In determining that
Maine's application is complete, the EPA has not made any decision
regarding this issue. Rather, the EPA will make its decision on this
issue as part of its decision approving or disapproving Maine's
program, after consideration of public comments.
Maine is applying to administer both the permit program for direct
dischargers to State waters and the pretreatment program (which covers
industrial sources discharging to publicly owned treatment works).
However, Maine has asked to assume responsibility for these programs in
phases, pursuant to CWA 402(n)(4). Maine's submission appears to meet
the requirements for such a phased approach. Thus, any approval of the
program regarding direct dischargers would take effect immediately
following approval. If approved, responsibility for operating the
pretreatment program would be transferred to the State only later--
effective December 31, 2000, unless an earlier transfer date was
announced in the Federal Register. Note, however, that a decision
whether to transfer the entire program (direct dischargers and
pretreatment) would be made following the current public comment
period. Thus, any comments related to any part of the State's program
must be submitted during the current public comment period. Maine's
MEPDES program generally covers all discharges of pollutants subject to
the federal NPDES program, but does not regulate the disposal of sewage
sludge. If it approves the State program, EPA will continue to regulate
sewage sludge disposal in Maine in accordance with Section 405 of the
Act and 40 CFR Part 503.
Pursuant to 40 CFR 123.21 and 123.61(b), the EPA must approve or
disapprove the submitted Maine program (which has been determined to be
complete) within 90 days of receipt, unless this review period is
extended by EPA-State agreement. To obtain approval, the State must
show, among other things, that it has authority to issue permits that
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. After
close of the comment period, EPA's Regional Administrator will decide
to approve or disapprove the MEPDES program, based on the requirements
of section 402 of the CWA and 40 CFR Part 123. If he approves the Maine
program, the Regional Administrator will so notify the State. Notice
would be published in the Federal Register and, as of the date of
program approval, EPA would suspend issuance of NPDES permits in Maine
(except for: sewage sludge permits under CWA Section 405 and 40 CFR
part 503 and permits for which EPA has issued public notice prior to
program approval). EPA would, however, retain the right to object to
MEPDES permits proposed by MEDEP, and if the objections are not
resolved, issue the permit itself. EPA would also retain jurisdiction
over all existing NPDES permits it has issued in Maine until MEDEP
reissued them as MEPDES permits. EPA would also oversee the State's
implementation of other aspects of the program. Finally, the EPA would
retain its full inspection and enforcement authorities as provided for
in the CWA, to address any CWA violations in Maine. These authorities
would continue to operate in addition to State inspection and
enforcement authorities. If the program is approved, the EPA and State
will enter into a Memorandum of Agreement (MOA) specifying particular
State and EPA responsibilities in program implementation, including
enforcement, but this MOA is not intended to restrict EPA's statutory
enforcement responsibilities or to create any rights for persons not a
party to the MOA.
If EPA's Regional Administrator disapproves the MEPDES program, he
will notify MEDEP of the reasons for disapproval and of any revisions
or modifications to the program which are necessary to obtain approval.
Public Hearing Procedures
The following procedures will be used at the January 16, 2000
public hearing:
1. The Presiding Officer shall conduct the hearing in a manner
which will allow all interested persons wishing to make oral statements
an opportunity to do so; however, the Presiding Officer may impose
reasonable time limits. Any person may submit written statements or
documents for the record at the hearing or otherwise during the comment
period.
2. The Presiding Officer may, in his discretion, exclude oral
testimony if such testimony is overly repetitious of previous testimony
or is not relevant to the decision to approve or require revision of
the submitted State program.
3. The transcript taken at the hearing, together with copies of all
submitted statements and documents, shall become a part of the record
submitted to the Regional Administrator.
4. The hearing record shall be left open until the deadline for
receipt of comments specified at the beginning of
[[Page 73554]]
this Notice to allow any person time to submit additional written
statements or to present views or evidence tending to rebut testimony
presented at the public hearing or other comments submitted during the
comment period.
5. Hearing statements may be oral or written. Written copies of
oral statements are urged for accuracy of the record. Statements should
summarize any extensive written materials. All comments received by EPA
Region I by the deadline for receipt of comments, or presented at the
public hearing, will be considered by EPA before taking final action on
the Maine request for NPDES program approval.
Summary of the Maine Pollution Discharge Elimination System
(MEPDES) Permitting Program Submission
The MEPDES program is fully described in documents the State has
submitted in accordance with 40 CFR 123.21, i.e., a Memorandum of
Agreement (MOA) for execution by MEDEP and EPA; a Program Description
outlining the procedures, personnel and protocols that will be relied
on to run the State's permitting and pretreatment 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.
I. The EPA/MEDEP MOA
The requirements for MOAs are found in 40 CFR 123.24. A Memorandum
of Agreement is a document signed by both the State and the EPA. The
MOA specifies program responsibilities and provides structure for the
State's program management and EPA's program oversight. The MOA
submitted by the State of Maine has been signed by the Commissioner of
the Department of Environmental Protection. The Regional Administrator
of U.S. EPA Region I will sign the document if the program has been
determined approvable and all comments received during the comment
period have been considered.
II. Program Description
A program description submitted by a State seeking program approval
must meet the minimum requirements of 40 CFR 123.22. It must provide a
narrative description of the scope, structure, coverage and processes
of the State program; a description of the organization, staffing and
position descriptions for the lead State agency; and itemized costs and
funding sources for the program. It must describe all applicable State
procedures (including administrative procedures for the issuance of
permits and administrative or judicial procedures for their review) and
include copies of forms used in the program. It must further contain a
complete description of the State's compliance and enforcement tracking
program. The State has submitted such a program description.
III. Attorney General's Statement
An Attorney General's Statement is required and described in
regulations found at 40 CFR 123.23. Legal counsel representing the
State must certify that the State has lawfully adopted statutes and
regulations that provide the State agency with the legal authority to
administer a program in compliance with 40 CFR part 123. The Attorney
General's Statement from Maine certifies that the State has the legal
authority to administer the MEPDES program in accordance with the
regulations in 40 CFR part 123.
The Attorney General's Statement also includes the State's
analysis, submitted pursuant to 40 CFR 123.23(b), asserting that the
State has authority to implement the MEPDES program in Indian country.
The Statement argues that the Maine Indian Claims Settlement Act
(MICSA), 25 U.S.C. 1721-35, and the Maine Implementing Act, 30 MRSA
Secs. 6201-14, grant the State jurisdiction to enforce the program on
the reservations and other Indian country of the five federally-
recognized Indian tribes in the State. The State also asserts that the
federal trust responsibility to federally-recognized tribes does not
operate in Maine. EPA is seeking comment on the Attorney General's
analysis regarding the State's jurisdiction and the EPA role in Indian
country in Maine.
Finally, in anticipation of the State's assertion of jurisdiction
in Indian country, EPA has already initiated consultations with
representatives of the federally-recognized tribes in Maine pursuant to
EPA's Indian policy of November 8, 1984 and the President's memorandum
of April 1, 1993 on government-to-government relations with Indian
tribes. While those consultations have been informative, EPA wishes to
remind the public that any comments that any party wishes EPA to
consider and address on the record in this action must be submitted
during the comment period provided for in this notice.
IV. Continuing Planning Process
The State has submitted a description of its Continuing Planning
Process in accordance with CWA Section 303(e) and 40 CFR 130.5. This
document describes the State's planning processes for developing
effluent limitations, total maximum daily loads (TMDLs) and water
quality standards, among other things. This document is being
separately reviewed by EPA pursuant to CWA Section 303(e) and 40 CFR
130.5, but also has been included as part of the State's application
for the NPDES Program.
Comments on the Described Program
The program submitted by the State of Maine has been determined to
be complete in accordance with the regulations found at 40 CFR part
123. EPA and MEDEP want to encourage public participation in this
authorization process so that the citizens of Maine will understand the
program in their State. Therefore, EPA requests that the public review
the program that MEDEP has submitted and provide any comments they
believe are appropriate. EPA will consider all comments on the MEPDES
program and/or its authorization in its decision.
Other Federal Statutes
National Historic Preservation Act
Section 106 of the National Historic Preservation Act (NHPA)
requires all federal agencies to take into account the effects of their
undertakings on historic properties and afford the Advisory Council on
Historic Preservation a reasonable opportunity to comment on such
undertakings. The Agency must consult with the appropriate State
Historic Preservation Officer (SHPO) and/or Tribal Historic
Preservation Officer (THPO) an all federal undertakings that have the
potential to cause effects on historic properties or sites listed or
eligible for listing in the National Register of Historic Places.
Regulations controlling Section 106 consultation are found at 36 CFR
Part 800 (1999). EPA approval of the State permitting program under
section 402 of the Clean Water Act would be a federal undertaking
within the meaning of the NHPA. The EPA is currently in discussions
with the appropriate SHPO and THPOs regarding its determination that
approval of the State permitting program itself would have no effect on
the preservation of historic properties within the State of Maine.
Endangered Species Act
Section 7 of the Endangered Species Act (ESA) requires that all
federal agencies consult with the U.S. Fish and Wildlife Service (FWS)
and/or the National Marine Fisheries Service (NMFS), as appropriate, to
insure their
[[Page 73555]]
actions are not likely to jeopardize the continued existence of any
listed species or result in the destruction or adverse modification of
the designated critical habitat of such species. Section 7 also
requires federal agencies to confer on any action that is likely to
jeopardize the continued existence of proposed species or result in the
destruction or adverse modification of proposed critical habitat.
Regulations controlling interagency cooperation under Section 7 are
codified at 50 CFR Part 402 (1999). EPA approval of the State
permitting program under section 402 of the Clean Water Act would be a
federal action subject to these requirements, however, subsequent State
MEPDES permit actions would not. Pursuant to the ESA, the EPA is
currently engaged in informal consultation and conferencing with both
FWS and NMFS.
Magnuson-Stevens Fishery Conservation and Management Act
Section 305(b)(2) of the Magnuson-Stevens Fishery Conservation and
Management Act (Magnuson-Stevens Act) requires all federal agencies to
consult with the National Marine Fisheries Service (NMFS) on agency
actions that may adversely affect essential fish habitat. Regulations
controlling consultation under Section 305(b)(2) are codified at 50 CFR
Part 600, Subpart K (1999). EPA approval of the State permitting
program under section 402 of the Clean Water Act would be a federal
actions requiring consultation, however, subsequent State MEPDES permit
actions would not. Pursuant to the Magnuson-Stevens Act, the EPA is
currently engaged in consultation with NMFS.
Coastal Zone Management Act
Pursuant to section 307(c)(1)(C) of the Coastal Zone Management
Act, Federal agencies carrying out an activity which affects any land
or water use or natural resource with the Coastal Zone of a state with
an approved Coastal Zone Management Plan must determine whether that
activity is, to the maximum extent practicable, consistent with the
enforceable requirements of the Plan and provide its determination to
the State agency responsible for implementation of the Plan for review.
Maine's approved Coastal Zone Management Plan is administered by the
Maine Office of State Planning. Maine's permit actions are themselves
subject to consistency review under State law; thus approval of the
MEPDES program would not affect Maine's Coastal Zone and would be
consistent with the enforceable requirements of Maine's Coastal Zone
Management Plan.
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 NPDES
program submission to constitute an adjudication because an
``approval'', within the meaning of the 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
Administrative Procedure Act (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 is the NPDES program approval were a rule subject to the RFA,
the Agency would certify that approval of the State's proposed MEPDES
program would not have a significant economic impact on a substantial
number of small entities. EPA's action to approve an NPDES program
merely recognizes that the necessary elements of an NPDES program have
already been enacted as a matter of State law; it would, therefore,
impose no additional obligations upon those subject to the State's
program. Accordingly, the Regional Administrator would certify that
this program, even if a rule, would not have a significant economic
impact on a substantial number of small entities.
Authority: This action is taken under the authority of Section
402 of the Clean Water Act as amended, 42 U.S.C. 1342.
Dated: December 20, 1999.
John P. DeVillars,
Regional Administrator, Region I.
[FR Doc. 99-33776 Filed 12-29-99; 8:45 am]
BILLING CODE 6560-50-M
