00-21078. Water Pollution Control; Approval of Modification to Wisconsin's Approved National Pollutant Discharge Elimination System Permitting Program To Administer a State Sewage Sludge Management (Biosolids) Program

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice; approval of application.

SUMMARY:

On July 28, 2000, pursuant to section 402(b) of the Clean Water Act (CWA), the Regional Administrator for EPA, Region 5, approved the State of Wisconsin's modification of its existing Wisconsin Pollutant Discharge Elimination System (WPDES) program to include the administration and enforcement of a state sewage sludge management program where it has jurisdiction.

FOR FURTHER INFORMATION CONTACT:

David Soong, at [phone], NPDES Support and Technical Assistance 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 Wisconsin's program submittal?

III. Was a public hearing held?

IV. Was the State Historic Preservation Officer and the U.S. Fish & Wildlife Service contacted?

V. Did EPA receive any public comments?

VI. Does EPA's approval affect Indian Country (18 U.S.C. 1151) in Wisconsin?

VII. Conclusion

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

IX. Administrative Requirements

A. Executive Order 12866: Requlatory Planning and Review

B. Executive Order 13045: Children's Health Protection

C. Executive Order 13084: Consultation and Coordination with Indian Tribal Governments

D. Executive Order 13132: Federalism

E. Regulatory Flexibility Act, as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq.

F. Unfunded Mandates Reform Act

G. National Technology Transfer and Advancement Act

H. Paperwork Reduction Act

I. Introduction

Wisconsin's application to modify its existing WPDES program to administer and enforce a state sewage sludge management program was submitted on May 26, 1998. Specifically, the state sought approval of a sludge management program which addresses the land application of sludge, surface disposal of sludge, and the landfilling of sludge. On March 8, 1999, the state amended its submittal limiting the state's request to all sludge activities mentioned above within the state except for those activities occurring within “Indian Country” as defined in 18 U.S.C. 1151. The state's sludge 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 Wisconsin, as they did not seek approval for these areas at this time. Wisconsin did not seek approval for the incineration of sludge or the land application of septage. The sludge management program is administered by the Wisconsin Department of Natural Resource (WDNR). Modifications were made to the program submittal based on discussions between EPA and WDNR. These modifications are part of the record of the program application and review process.

II. Was Notice Provided Seeking Public Comments on Wisconsin's Program Submittal?

Wisconsin's application was described in the May 8, 2000 Federal Register (65 FR 26607-26611), in which EPA requested public comments for a period of 45 days. Further notice was provided by way of publication in the following newspapers on May 8, 2000: Wisconsin State Journal; Milwaukee Journal/Sentinel; Green Bay Press Gazette; Superior Daily Telegram; Lacrosse Tribune; Eau Claire Leader Telegram; and Wausau Daily Herald. EPA also provided copies of the public notice to interested persons and parties: permitted facilities, Indian tribes, other Federal and state agencies, and environmental groups within Wisconsin. Copies of WDNR's application package were available for public review at the EPA Region 5 Office and at WDNR's regional 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. Was the State Historic Preservation Officer and the U.S. Fish & Wildlife Service Contacted?

By letter dated February 23, 2000, we requested concurrence from the State Historic Preservation Officer that approval of WDNR to implement a sewage sludge management program would not have an adverse impact on historical and archeological resources. We received concurrence on April 12, 2000.

EPA and WDNR discussed the program application with the Green Bay Ecological Services Field Office of the U.S. Fish and Wildlife Service (FWS). On July 20, 2000, an agreement was reached. The objective of the agreement is to ensure compliance with conditions of the Endangered Species Act. The agreement provides that:

1. land application of municipal sludge on actively farmed agricultural land (cultivated within the previous two years) will not have an adverse impact on federally-listed threatened or endangered species or its critical habitat listed as of July 28, 2000, when done in compliance with state rules;

2. the 1999 Wisconsin Statewide Habitat Conservation Plan (HCP) for the Karner Blue Butterfly and Incidental Take Permit TE 010064 issued for the HCP by the FWS covers any incidental take that may occur to the Karner Blue Butterfly as a result of spreading municipal sewage on actively farmed agricultural land until September 27, 2009. It is understood that the issue may need to be further addressed if the HCP and permit are amended in the interim or are not renewed after the ten year term is over on September 27, 2009;

3. WDNR will notify the FWS Green Bay Ecological Services Field Office of any site request received in Dane, Grant, Pierce, Rock, or Sauk Counties for land that has been fallow for a period of two years or longer to ensure protection of prairie bush-clover, a federally-listed threatened species.

If new information becomes available that indicates these species, additional species, newly listed species or designated critical habitat may be affected by the land application of municipal sewage sludge, appropriate remedies will be discussed by WDNR, EPA, and FWS.

V. Did EPA Receive Any Public Comments?

Pursuant to the public notice, we accepted written comments from the public postmarked on or before June 22, 2000. During the comment period, we received two comments. These commenters fully support the modification of the state's WPDES program to include the administration and enforcement of a sludge management program.

VI. Does EPA's Approval Affect Indian Country (18 U.S.C. 1151) in Wisconsin?

As stated above, WDNR did not seek approval to administer and enforce the state sewage sludge management program for activities occurring in Indian Country. Our approval does not authorize WDNR to carry out its WPDES program in Indian Country, which includes:

1. Lands within the exterior boundaries of the following Indian Reservations within or abutting the State of Wisconsin:

a. Bad River Indian Reservation.

b. Forest County Indian Reservation.

c. Ho-Chunk Nation Indian Reservation.

d. Lac Courte Oreilles Indian Reservation.

e. Lac Du Flambeau Indian Reservation.

f. Menominee Indian Reservation.

g. Oneida Indian Reservation.

h. Red Cliff Indian Reservation.

i. Sokaogon (Mole Lake) Indian Reservation.

j. St. Croix Indian Reservation.

k. Stockbridge-Munsee Indian Reservation.

2. Any land held in trust by the U.S. for any Indian tribe, and

3. Any other land, whether on or off a reservation that qualifies as Indian Country.

Therefore, our approval of the state's sludge management program, will have no effect in Indian Country where EPA continues to implement and administer the NPDES program.

VII. Conclusion

The Wisconsin Department of Natural Resources has demonstrated that it adequately meets the requirements for program modification to include sludge management (specifically, the application of sludge, surface disposal of sludge, and the landfilling of sludge) 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 sewage sludge management program for the incineration of sludge, the land application of septage, and activities occurring in Indian Country, as mentioned above.

VIII. 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 Wisconsin's authority to administer the 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
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			03/04/83
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		05/01/95	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	09/11/96	09/11/96	09/11/96	09/11/96
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
Oklahoma	11/19/96	11/19/96	11/19/96		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
Tennessee	12/28/77	09/30/86	08/10/83	04/18/91
Texas	09/24/98	09/24/98	09/24/98	09/24/98	09/24/98
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	44	38	32	42	04
Number of Fully Authorized Programs (Federal Facilities, Pretreatment, General Permits) = 28.
Number of authorized Sludge Management Programs = 4.
1 The Florida authorizations of 05/01/95 represents a phased NPDES program authorization to be completed by the year 2000.

IX. Administrative Requirements

A. Executive Order 12866: Regulatory Planning and Review

The Office of Management and Budget (OMB) has exempted this regulatory action from the requirements of Executive Order 12866, entitled “Regulatory Planning and Review.”

B. Executive Order 13045: Children's Health Protection

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

Today's action is not subject to Executive Order 13045 because it does not involve decisions based on environmental health or safety risks.

C. Executive Order 13084: Consultation and Coordination With Indian Tribal Governments

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments. If the mandate is unfunded, EPA must provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation.

In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

Today's action is not subject to Executive Order 13084 because it does not significantly or uniquely affect the communities of Indian tribal governments. Wisconsin is not authorized to implement the NPDES program in Indian Country. Therefore, today's action has no effect on Indian Country within the state.

D. Executive Order 13132: Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among various levels of government.”

Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that impose substantial direct compliance costs, and that is not required by statute, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by state and local governments, or EPA consults with state and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts state law unless the Agency consults with state and local officials early in the process of developing the proposed regulation.

Today's action does not have federalism implications. It does not have a substantial direct effect on states, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because this action only effects one State. The approval simply modifies Wisconsin's existing program that they have voluntarily chosen to operate. Further, as a result of the approval, provisions of Wisconsin's sludge management program apply in lieu of the equivalent federal program provisions implemented by EPA under the CWA. Affected parties are subject only to those authorized state program provisions, as opposed to being subject to both federal and state regulatory requirements. Thus, the requirements of section 6 of the Executive Order do not apply.

E. Regulatory Flexibility Act, as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq.

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

Today's action does not have a significant impact on a substantial number of small entities because it does not impose any new requirements on small entities because small entities that generate or prepare sewage sludge for land application, landfilling, or surface disposal are already subject to the regulatory requirements under state and federal laws. With approval of the program modification, the state's program applies in lieu of the equivalent federal program. Therefore, because the approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

F. Unfunded Mandates Reform Act

Under section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a federal mandate that may result in estimated annual costs to state, local, or tribal governments, in the aggregate, or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that this action does not include a federal mandate that may result in estimated annual costs of $100 million or more to either state, local, or tribal governments in the aggregate, or to the private sector. With EPA's approval of the program modification, the state's program applies in lieu of the equivalent federal program, therefore, imposing no new requirements under state or local law. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, result from this action.

G. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

EPA believes that VCS are inapplicable to this action. Today's action does not involve technical standards.

H. Paperwork Reduction Act

Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., federal agencies must consider the paperwork burden imposed by any informational request contained in a proposed rule or a final rule. Today's action will not impose any information requirements upon the regulated community.

List of Subjects in 40 CFR Parts 123 and 501

• Environmental protection
• Administrative practice and procedures
• Indian lands
• Intergovernmental relations
• Water pollution control
• Waste treatment and disposal

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

Dated: August 10, 2000.

Francis X. Lyons,

Regional Administrator, Region 5.