E8-13831. State Program Requirements; Application To Administer the National Pollutant Discharge Elimination System (NPDES) Program; Alaska

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

SUMMARY:

The State of Alaska has submitted a request for approval of 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”). With this request, the Alaska Department of Environmental Conservation (ADEC) seeks approval to administer a program regulating discharges of pollutants into waters of the United States under its jurisdiction. The State's request 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. If EPA approves the Alaska Pollutant Discharge Elimination System (APDES) program application, the State will administer this program, subject to continuing EPA oversight and enforcement authority, in place of the National Pollutant Discharge Elimination System (NPDES) program now administered by EPA in Alaska. Today, EPA is requesting comments on the State's request and is providing notice of public hearings and comment period on that proposal. EPA will either approve or disapprove the State's request after considering all comments it receives.

DATES:

Comments. The public comment period on the State's request for approval to administer the proposed APDES program will be from the date of publication until August 18, 2008. Comments must be received or post-marked by no later than 11:59 p.m. on August 18, 2008

Educational Meetings and Public Hearings: EPA, Region 10 will hold three combined educational meetings and public hearings on the following dates:

1. July 21, 2008, Educational Meeting, 4 to 6 p.m.; Public Hearing, from 7 p.m. until all testimony is heard or 10 p.m., whichever is earlier, in Fairbanks, AK.

2. July 22, 2008, Educational Meeting, 4 to 6; Public Hearing, from 7 p.m. until all testimony is heard or 10 p.m., whichever is earlier, in Juneau, AK.

3. July 23, 2008, Educational Meeting, 4 to 6 p.m.; Public Hearing from 7 p.m. until all testimony is heard or 10 p.m., whichever is earlier, in Anchorage, AK.

Comments. Send or hand deliver all paper copies to Nina Kocourek, Office of Water and Watersheds, Mail Stop OWW-130, 1200 Sixth Avenue, Suite 900, Seattle, WA 98101-3140. Call [phone] before hand delivery to verify business hours; send electronic copies to [e-mail]; and fax copies to [phone]. EPA requests that a duplicate copy of comments be sent to Sharon Morgan, [e-mail], Alaska Department of Environmental Conservation, P. O. Box 111800, 410 Willoughby Avenue, Suite 303, Juneau, AK 99811-1800.

Viewing and/or Obtaining Copies of Documents. Copies of Alaska's APDES program submission (aka application) and all other documents in the official record are available for inspection at the EPA Region 10 Library, Park Place Building, 1200 6th Avenue, Suite 900, Seattle, WA 98101-3140. The library hours are 9 a.m. to noon and 1 p.m. to 2:30 p.m. Monday through Friday, except federal holidays, telephone number [phone]; and at the EPA, Region 10, Alaska Operations Office, 222 W 7th Avenue, #19, Room 537, Anchorage, AK 99513, during normal business hours, contact Greg Kellogg at [phone]. The application can be viewed or downloaded from the EPA Web site http://www.epa.gov/​r10earth/​waterpermits.htm. ADEC will also have copies of the application available for viewing Monday through Friday, 8:30 a.m. to 4:30 p.m., except Alaska holidays, at the following locations: 555 Cordova Street, Anchorage, AK 99501-2617; 410 Willoughby Avenue, Suite 303, Juneau, AK 99811-1800; 610 University Drive, Fairbanks, AK 99709; 1700 E Bogard Road #B, Suite 103, Wasilla, AK 99654; and 43335 Kalifonsky Beach, Suite 11, Soldotna, AK 99669. ADEC will have the application available on compact disk (CD), contact Sharon Morgan, e-mail [e-mail] or call [phone]) to receive a CD. The application can be viewed or downloaded from the State of Alaska Web site http://www.dec.state.ak.us/​water/​npdes/​npdes.htm. Part or all of the State's 2,455 page APDES program application may be copied at EPA or at ADEC. ADEC has no copy fee for 200 or fewer pages and charges .20 per page for more than 200 pages. You may also request a copy of all or parts of the application from EPA using the Freedom of Information Act (FOIA) request process. The procedures and costs associated with a FOIA request can be found at the EPA Web site http://yosemite.epa.gov/​r10/​extaff.nsf/​webpage/​Freedom+​of+​Information+​Act?​OpenDocument.

Locations of Educational Meetings and Public Hearings: On July 21, 2008 at the Regency Fairbanks Hotel, 85 10th Avenue, Fairbanks, AK; on July 22, 2008 at the Centennial Hall, 101 Egan Drive, Juneau, AK; and on July 23, 2008 at the Howard Johnson Plaza Hotel, 239 W. 4th Avenue, Anchorage, AK. See SUPPLEMENTARY INFORMATION for additional information.

FOR FURTHER INFORMATION CONTACT:

Nina Kocourek, 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 Greg Kellogg U.S. Environmental Protection Agency, Region 10, Alaska Operations Office, 222 W 7th Avenue, #19, Room 537, Anchorage, AK 99513, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

Section 402 of the CWA created the NPDES program under which EPA may issue permits for the point source 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 the Governor's request, provided the State has appropriate legal authority and a program sufficient to meet the Act's requirements. The regulatory requirements for state program approval are set forth in 40 CFR Part 123, and 40 CFR 123.21 lists the basic elements of an approvable application.

EPA Region 10 considers the documents submitted by the State of Alaska to be administratively complete at the time of this notice. EPA will not make a final decision on APDES program approval until after: (1) Considering all public comments provided during the public comment period and from the public hearings; (2) completion of EPA's evaluation of, and if necessary consultation with the National Marine Fisheries Service on, the affects program approval may have on essential fish habitat, in accordance with section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act; and (3) completion of government to government tribal consultations, as requested, with federally recognized tribes in Alaska.

By letter dated June 29, 2006, the Governor of Alaska requested NPDES program approval and submitted an application that included a program description, 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 10 and the Commissioner of ADEC. EPA received this package of materials on July 5, 2006. EPA Region 10 determined that Alaska's approval request did not constitute a complete package under 40 CFR 123.21, and notified the Governor of Alaska on August 1, 2006, in writing of its concerns. On October 31, 2006, EPA sent ADEC a comprehensive list of comments on the July 5, 2006 application.

Thereafter, by letter dated April 22, 2008, the Governor of Alaska requested NPDES program approval and submitted an application that includes a program description, 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 10 and the Commissioner of ADEC. EPA received this package of materials on May 1, 2008. EPA Region 10 determined that the APDES program application received on May 1, 2008, along with revisions received up to June 9, 2008, constitute a complete package under 40 CFR 123.21. A letter of completeness was sent to the Commissioner of ADEC on June 10, 2008.

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 is not applying to regulate the disposal of sewage sludge (Bio-Solids Program) in Alaska. If EPA approves the State's program, EPA will retain 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.

The State does not have the authority to administer the NPDES program for facilities operating in the Denali National Park and Preserve pursuant to Alaska Statehood Act section 11; the United States has exclusive jurisdiction over the Denali National Park and Preserve. Additionally, the State does not have jurisdiction to administer the NPDES program over facilities discharging in Indian Country as defined in 18 U.S.C. 1151; facilities operating outside state waters (three miles offshore), or over facilities with CWA section 301(h) waivers. If EPA approves the State's program, EPA will retain NPDES permitting authority and primary enforcement responsibility over these facilities.

The State of Alaska has asked to assume responsibility for the NPDES programs in phases, pursuant to the CWA section 402(n)(4). Alaska's application appears to meet 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 proposes to assume administration of the NPDES program by phases within 5 years after submission of the application, and agrees to make all reasonable efforts to assume such administration by such date. Specifically, ADEC's approval request includes a schedule for EPA to transfer permit, compliance, and enforcement responsibility for the NPDES program to DEC over three years from the date of APDES program approval. The following schedule identifies the phasing plan for when the APDES program will begin the administration of 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 add: 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 add Mining. Phase IV, three years from program approval the APDES program will add: Oil and Gas, Cooling water intakes and dischargers, Munitions, and all other remaining facilities.

Pursuant to 40 CFR 123.21 and 123.61(b), the EPA must approve or disapprove the submitted APDES program (which has been determined to be complete) within 90 days of receipt, unless this review period is extended by mutual EPA-State agreement. To obtain program approval, the State must show, among other things that it has the 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 an opportunity for a hearing on each proposed permit. After close of the comment period and completion of the required consultations, the Regional Administrator for EPA Region 10 will make a decision to approve or disapprove the APDES program based on the requirements of Section 402 of the CWA and 40 CFR 123. If the Regional Administrator approves the Alaska program, the Regional Administrator will so notify the State and sign the proposed MOA. Notice would be published in the Federal Register and, as of the date of program approval, EPA would suspend issuance of NPDES permits in Alaska in accordance with the State's approved schedule to transfer NPDES program authority as described in the State's phasing plan. If EPA's Regional Administrator disapproves the APDES program, ADEC will be notified of the reasons for disapproval and of any revisions or modifications to the program that are necessary to obtain approval.

Educational Meetings. The educational meetings will include a technical overview of both the federal and state programs. ADEC will participate with EPA during the educational portion of the meetings.

Public Hearing Procedures. The public hearings will be conducted in accordance with 40 CFR 124.12 and will provide interested parties with the opportunity to give written and/or oral comments for the official record. The following procedures will be used at the public hearings. (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 inform attendees of any time limits during the opening statement of the hearing. (2) Any person may submit written statements or documents for the hearing record. (3) 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 the submitted State APDES program. (4) 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. (5) The hearing record shall be left open until the deadline for receipt of comments specified at the beginning of 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. (6) Hearing statements may be oral or written. Written copies of oral statements are urged for accuracy of the record and for use of the Hearing Panel and other interested persons. Persons wishing to make oral testimony supporting their written comments are encouraged to give a summary of their points rather than reading lengthy written comments verbatim into the record. All comments received by EPA Region 10 by the deadline for receipt of comments, or presented at the public hearing, will be considered by EPA before taking final action on Alaska's request for NPDES program approval.

Summary of the Alaska Pollutant Discharge Elimination System (APDES) Program Submission. The ADEC application for program approval applies to discharges into waters of the United States covered by the authority of that Agency. This includes most discharges of pollutants subject to the federal NPDES program (e.g., municipal wastewater and stormwater point source discharges, pretreatment, industrial wastewater and stormwater point source discharges; and point source discharges from federal facilities). ADEC is not seeking authority to regulate the discharges of sewage sludge (Bio-Solids Program). The APDES program is fully described in documents the State has submitted in accordance with 40 CFR 123.21, which include the following: 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. The following is a summary of these documents:

Governor's Letter: Alaska's application for program approval includes a letter dated April 22, 2008, from Governor Sarah Palin officially requesting NPDES program approval pursuant to 40 CFR 123.21(a)(1).

Memorandum of Agreement (MOA): The requirements for the MOA are found in 40 CFR 123.24. An MOA is a document signed by each Agency, committing them to specific responsibilities relevant to the administration and enforcement of the State's regulatory program. An MOA specifies these responsibilities and provides structure for the State's program management and EPA's program oversight. The MOA submitted by the State of Alaska has been signed by the Commissioner of the Alaska Department of Environmental Conservation. The Regional Administrator of U.S. EPA Region 10 will sign the document if the MOA and the program have been determined approvable after all comments received during the comment period have been considered.

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 and staffing for the lead State agency; and itemized costs and funding sources for the program for the first two years after program approval. 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.

Attorney General's Statement: An Attorney General's Statement is required and described in regulations found at 40 CFR 123.23. The State Attorney General must certify that the State has lawfully adopted statutes and regulations which provide the State agency with the legal authority to administer a permitting program in compliance with 40 CFR Part 123. The Attorney General's Statement from Alaska certifies that the State of Alaska has the legal authority to administer the APDES program described in the program description.

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. The State plans to update this document, when necessary, to reflect significant changes to the process or new or amended federal regulations or guidance.

Public Comment on the Described Program. The program submitted by the State of Alaska has been determined by EPA to be complete in accordance with the regulations found at 40 CFR part 123. EPA and ADEC want to encourage public participation in this authorization process so that the citizens of Alaska will understand the program in their State. Therefore, EPA requests the public to review the program that ADEC has submitted and provide any comments they feel are appropriate. EPA will consider all comments on the APDES program and/or its authorization in its decision.

Authority: This action is taken under the authority of Section 402 of the Clean Water Act as amended, 42 U.S.C. 1342. I hereby provide public notice of the application by the State of Alaska for approval to administer the State NPDES program, in accordance with 40 CFR 123.61.

Dated: June 10, 2008.

Elin D. Miller,

Regional Administrator, Region 10.