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State Program Requirements; Revision of the Approved National Pollutant Discharge Elimination System (NPDES) Program in South Dakota

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Information about this document as published in the Federal Register.

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Environmental Protection Agency (EPA).


Notice; Approval of revision of the South Dakota NPDES Program under the Clean Water Act.


On October 22, 2001, the Acting Regional Administrator for Region VIII of the Environmental Protection Agency (EPA) approved a revision to the existing South Dakota Pollutant Discharge Elimination System program. With this revision, the State of South Dakota is now authorized to administer and enforce a sludge management (biosolids) program where the State has jurisdiction. This program will be administered by the South Dakota Department of Environment and Natural Resources (SDDENR).

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Bob Brobst, Water Permits Team (8P-W-P), US EPA, Region VIII, 999 18th Street, Suite 300, Denver, Colorado 80202-2466; telephone number (303) 312-6129; email address

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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 1993, South Dakota applied to the EPA for authority to administer the South Dakota Pollutant Discharge Elimination System (SDPDES) program. The EPA approved South Dakota's application on December 30, 1993, as described in a January 11, 1994 Federal Register notice (59 FR 1535).

Section 405 of the CWA, 33 U.S.C. 1345, authorizes the EPA to issue permits for the disposal of sewage sludge. Section 405(c) of the CWA, 33 U.S.C. 1345(c), authorizes any state desiring to administer its own permit program for the sludge disposal to do so in accordance with Section 402 of the CWA. On August 12, 1998, South Dakota submitted such an application to the EPA, requesting that the State's original NPDES authorization be amended to include a state sludge management program described in an accompanying proposal dated March 23, 1998.

The EPA, having found that South Dakota's application meets all pertinent requirements in the CWA and the EPA's regulations, particularly 40 CFR parts 123 and 501, has approved South Dakota's application for primary authority to administer a sludge management program.

II. Public Comments

The EPA provided two periods for any interested member of the public to comment on this application. No comments were received. Start Printed Page 64978

Initially, the EPA described this application in a Federal Register notice dated October 5, 2000 (65 FR 59385), in notices published in the Rapid City Journal and the Sioux Falls Argus-Leader on October 20, 2000, and in individual mailings to persons known to be interested in such matters. In the October 5, 2000 Federal Register notice, the EPA stated it would consider any comments received on or before November 20, 2000. In a second Federal Register notice, which was dated January 18, 2001, the EPA extended the public comment period to March 5, 2001, because the first Federal Register notice had omitted mention of the fact that a public hearing could be requested on the application. No public hearing was requested, and none was held.

III. Threatened and Endangered Species

On June 29, 2000, following discussions with representatives of the EPA, the Field Supervisor of the South Dakota Field Office of the United States Fish and Wildlife Service concurred with the EPA's determination that approving South Dakota's biosolids 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 any designated critical habitat for any such species.

IV. Historic Preservation

On November 5, 1999, the South Dakota State Historical Society provided the EPA with a written determination that the addition of the biosolids program to the SDPDES program would have no effect on historic properties in South Dakota.

V. Indian Country

South Dakota is not authorized to carry out its biosolids program in Indian Country, as defined in 18 U.S.C. 1151. This includes, but is not limited to: Lands within the exterior boundaries of the following Indian reservations located within the State of South Dakota:

A. Cheyenne River Indian Reservation,

B. Crow Creek Indian Reservation,

C. Flandreau Indian Reservation,

D. Lower Brule Indian Reservation,

E. Pine Ridge Indian Reservation,

F. Rosebud Indian Reservation,

G. Standing Rock Indian Reservation, and

H. Yankton Indian Reservation.

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 record-keeping requirements. Because the State of South Dakota has adopted the EPA's sludge management regulation at 40 CFR part 503 by reference, the matters subject to reporting and record-keeping requirements will remain the same after the EPA's approval of South 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 Acting Regional Administrator for EPA Region VIII, 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 South Dakota's program is not a “Federal mandate,” because there is no federal mandate for states to establish sludge management 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 OMB. The EPA has determined that this approval action is not “significant” for purposes of Executive Order 12866 because, as mentioned above, South Dakota has adopted the EPA's sludge management regulations.

F. Executive Order No. 12898—Environmental Justice

Executive Order No. 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 sludge management facilities.

G. Executive Order No. 13045—Protection of Children

Executive Order No. 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 No. 12866, and (2) Start Printed Page 64979concerns 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 No. 13045 because it is not economically significant as defined in Executive Order No. 12866.

H. Executive Order No. 13175—Consultation with Tribes

Under Executive Order No. 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 tribe. As indicated above, South Dakota is not authorized to implement its sludge management program in Indian Country. The EPA will continue to administer the existing sludge management program in Indian Country in South Dakota.

I. Executive Order No. 13132—Federalism

Executive Order No. 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 No. 13132. It will merely put in place a State regulatory program that is identical to the existing federal program.

J. Executive Order No. 13211—Energy Effects

Because it is not a “significant regulatory action” under Executive Order No. 12866, this action is not subject to Executive Order No. 13211, “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001).

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Dated: December 4, 2001.

Kerrigan Clough,

Acting Regional Administrator, Region VIII.

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[FR Doc. 01-31011 Filed 12-14-01; 8:45 am]