04-6928. State Program Requirements; Revision of the Approved National Pollutant Discharge Elimination System (NPDES) Program in North Dakota

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule; notice of application and public comment period.

SUMMARY:

The State of North Dakota has submitted an application to EPA to revise the existing North Dakota Pollutant Discharge Elimination System (NDPDES) program to include administration and enforcement of the Industrial Pretreatment Program. According to the State's application dated November 12, 2003, this program would be administered by the North Dakota Department of Health (NDDOH), Division of Water Quality Department.

The application from North Dakota is complete and is available for viewing and copying. The EPA has reviewed the State's request for delegation for completeness and adequacy and has found that the application meets federal equivalency regulations.

DATES:

Written comments on this proposed rule received on or before April 28, 2004, will be considered before issuing an approved final rule. Comments postmarked after this date will not be considered.

ADDRESSES:

Anyone can view and copy North Dakota's application for revision from 8 a.m. until 5 p.m., Monday through Friday, excluding holidays, at the North Dakota Department of Health, 1200 Missouri Avenue, Bismarck, North Dakota or at the EPA Regional Offices located at 999 18th Street, Suite 300, Denver, Colorado. Requests for copies should be addressed to Gary Bracht, North Dakota Department of Health at the above address or at telephone number [phone]. (There may be a charge for copies.) Electronic comments are encouraged and should be submitted to the e-mail address of [e-mail] or send written comments to Jennifer Harris, U.S. EPA Region 8, 8P-W, 999 18th Street, Suite 300, Denver, Colorado 80202-2466.

FOR FURTHER INFORMATION CONTACT:

Jennifer Harris, Water Program (8P-W), U.S. EPA, Region 8, 999 18th Street, Suite 300, Denver, Colorado 80202-2466; telephone number [phone], email address [e-mail].

I. Background: Under section 402 of the Clean Water Act (CWA), 33 U.S.C. 1342, the EPA may issue permits allowing discharges of pollutants from point sources into waters of the United States, subject to various requirements of the CWA. These permits are known as National Pollutant Discharge Elimination System (NPDES) permits. Section 402(b) of the CWA, 33 U.S.C. 1342(b), allows states to apply to the EPA for authorization to administer their own NPDES permit programs. In 1975, the EPA approved North Dakota's application to administer the North Dakota Pollutant Discharge Elimination System (NDPDES) program.

Section 402(b) of the CWA, 33 U.S.C. 1345(c), authorizes any state desiring to administer its own industrial pretreatment program to do so in accordance with section 402 (b)(8) and (9) of the CWA, following the procedures and requirements set out in 40 CFR 403.10. On November 12, 2003, North Dakota submitted a letter to the EPA requesting that the State's original NPDES authorization be amended to include an Industrial Pretreatment program described in an accompanying application dated November 12, 2003.

II. Public Comments: A public comment period will be conducted for 30 days and noticed in a Federal Register notice. Commenters may request a public hearing. A hearing will be held if there is significant public interest based on requests received. A request should be made in writing within the comment period and sent to Jennifer Harris, Water Program (8P-W), U.S. EPA, Region 8, 999 18th Street, Suite 300, Denver, Colorado 80202-2466; telephone number [phone], email address [e-mail]. A copy of the notice will be published in the following newspapers in North Dakota: Bismarck Tribune, Bismarck, the Herald in Grand Forks, and the Fargo Forum in Fargo, and in individual mailings to persons known to be interested in such matters.

III. Threatened and Endangered Species: On February 25, 2004, following discussions with representatives of the EPA, the Field Supervisor of the North Dakota Field Office of the United States Fish and Wildlife Service concurred with the EPA's determination that approving North Dakota's Industrial Pretreatment program application was unlikely either to jeopardize the continued existence of any species listed as threatened or endangered under the Endangered Species Act, 16 U.S.C. 1531 et seq., or to result in the adverse modification of designated critical habitat for any such species.

IV. Historic Preservation: On February 3, 2004, the North Dakota State Historical Society provided the EPA with a written determination that the addition of the Industrial Pretreatement program to the NDPDES program would have no effect on historic properties in North Dakota.

V. Indian Country: North Dakota is not authorized to carry out its Industrial Pretreatment program in Indian country, as defined in 18 U.S.C. 1151. This includes, but is not limited to:

1. Lands within the exterior boundaries of the following Indian reservations located within the State of North Dakota:

A. Fort Totten Indian Reservation,

B. Standing Rock Indian Reservation,

C. Fort Berthold Indian Reservation, and

D. Turtle Mountain Indian Reservation,

2. Any land held in trust by the U.S. for an Indian Tribe, and

3. Any other land which is “Indian country” within the meaning of 18 U.S.C. 1151.

VI. Administrative Requirements: The EPA has long considered a determination to approve or deny a State NPDES program submission to constitute an adjudication, not a rulemaking. This is because an “approval,” as that term is used in the Administrative Procedure Act, 5 U.S.C. 551 et seq., constitutes a “license,” which, in turn, is the product of an “adjudication.” Therefore, the requirements for rules that are established by the statutes and Executive Orders mentioned below would not apply to this action. Even if this action were considered a rulemaking, the statutes and Executive Orders discussed below would not apply for the following reasons.

A. Paperwork Reduction Act: The EPA has determined that there is no need for an Information Collection Request under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., because this action would not impose any new federal reporting or recordkeeping requirements. Because the State of North Dakota has adopted the EPA's Industrial Pretreatment regulations at 40 CFR 403.10(f)(1), the matters subject to reporting and recordkeeping requirements will remain the same after the EPA's approval of North Dakota's program.

B. Regulatory Flexibility Act: The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq., generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure 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.

As Regional Administrator for EPA Region 8, I hereby certify, pursuant to 5 U.S.C. 605(b), that this action will not have a significant economic impact on a substantial number of small entities.

C. Unfunded Mandates Reform Act: Title II of the Unfunded Mandates Reform Act (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. Under section 202 of the UMRA, the EPA is generally required to prepare a written statement, including a cost-benefit analysis, for proposed and final rules with federal mandates that may result in expenditures to state, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. The EPA's approval of North Dakota's program is not a federal mandate because there is no federal mandate for states to establish industrial pretreatment programs.

D. National Technology Transfer and Advancement Act: Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note), directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards, e.g., material specifications, test methods, sampling procedures, and business practices, that are developed or adopted by voluntary consensus standards bodies. This action does not involve the use of technical standards subject to the NTTAA.

E. Executive Order 12866: Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA must determine whether its regulatory actions are “significant” and therefore subject to review by the Office of Management and Budget. The EPA has determined that this approval action is not “significant” for purposes of Executive Order 12866 because, as mentioned above, North Dakota has adopted the EPA's industrial pretreatment program regulations.

F. Executive Order 12898—Environmental Justice: Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” dated February 11, 1994, focuses federal attention on the environmental and human health conditions of minority populations and low-income populations with the goal of achieving environmental protection for all communities. Today's action will not diminish the health protection to minority and low-income populations because, as mentioned above, it will not impose any different requirements than those already in effect for industrial pretreatment facilities.

G. Executive Order 13045—Protection of Children: Executive Order 13045, dated April 23, 1997 (62 FR 19885), applies to any rule that (1) is determined to be “economically significant” as defined in Executive Order 12866, and (2) concerns an environmental health or safety risk that the EPA has reason to believe may have a disproportionate effect on children. This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and it does not concern any additional health or safety risks to children.

H. Executive Order 13175—Consultation with Tribes: Under Executive Order 13175, no federal agency may issue a regulation that has tribal implications, that imposes substantial direct compliance costs on Indian tribal governments, and that is not required by statute, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments or the agency consults with tribal officials early in the process of developing the proposed regulation. This action will not significantly affect any Indian tribes. As indicated above, North Dakota is not authorized to implement its pretreatment program in Indian country. The EPA will continue to administer the existing Industrial Pretreatment program in Indian country in North Dakota.

I. Executive Order 13132—Federalism: Executive Order 13132, entitled “Federalism,” dated August 10, 1999 (64 FR 43255), requires the 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.” The phrase “policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on States, on the relationship between the national government and States, or on the distribution of power and responsibilities among the various levels of government.” This action does not have federalism implications. It will not have any substantial direct effects on the States, on the relationship between States and the national government, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. It will merely put in place a State regulatory program that is identical to the existing federal program.

J. Executive Order 13211—Energy Effects: Because it is not a “significant regulatory action” under Executive Order 12866, this action is not subject to Executive Order 13211, “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001).

Dated: March 19, 2004.

Robert E. Roberts,

Regional Administrator, Region VIII.