11270 Federal Register / Vol. 62, No. 47 / Tuesday, March 11, 1997 / Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 123 and 501

[FRL–5702–1]

RIN 2040–AC87

Streamlining the State Sewage Sludge

Management Regulations

AGENCY: Environmental Protection

Agency.

ACTION: Proposed rule.

SUMMARY: The Environmental Protection

Agency (EPA) today proposes to amend

its regulations that establish the

requirements for States seeking approval

to operate sewage sludge permit

programs pursuant to section 405(f)(1)

of the Clean Water Act. These

requirements are now found at 40 CFR

parts 123 (for National Pollutant

Discharge Elimination System (NPDES)

programs) and 501 (for non-NPDES

programs). Both sets of requirements

were modeled on the NPDES

requirements for authorization of

wastewater effluent discharge programs.

Many States manage sewage sludge

through their solid waste programs

which are often structured differently

from the NPDES programs. As a result,

existing State sewage sludge programs

may require significant changes in order

to meet all the requirements of parts 123

or 501. EPA is eager for States with

well-run sewage sludge management

programs to obtain approval to operate

their own permit programs under

section 405(f)(1) without having to make

unnecessary administrative and

programmatic changes unrelated to

protection of public health and the

environment. The proposed changes

would streamline the regulations to ease

the authorization process for States,

provide flexibility to States in

implementing their permit programs

and ensure that permitting

determinations are based on

environmental and public health

considerations.

DATES: In order to be considered,

comments must be received on or before

May 12, 1997.

ADDRESSES: Comments should be

addressed to State Sewage Sludge

Management Rule Comment Clerk,

Water Docket MC–4101; U.S.

Environmental Protection Agency, 401

M Street, SW., Washington, DC, 20460.

Commenters are requested to submit an

original and 3 copies of their written

comments as well as an original and 3

copies of any attachments, enclosures,

or other documents referenced in the

comments. Commenters who want

receipt of their comments acknowledged

should include a self-addressed,

stamped envelope. All comments must

be postmarked or delivered by hand by

May 12, 1997. No facsimiles (faxes) will

be accepted.

EPA will also accept comments

electronically. Comments should be

addressed to the following Internet

address: ow-docket@epamail.epa.gov.

Electronic comments must be submitted

as an ASCII file avoiding the use of

special characters and any form of

encryption. Electronic comments will be

transferred into a paper version for the

official record. EPA will attempt to

clarify electronic comments if there is

an apparent error in transmission.

Comments provided electronically will

be considered timely if they are

submitted electronically by 11:59 p.m.

(Eastern time), May 12, 1997. EPA is

experimenting with electronic

commenting; therefore commenters may

want to submit both electronic

comments and duplicate paper

comments. This document has also been

placed on the Internet for public review

and downloading at the following

location: gopher.epa.gov.

The public may inspect the

administrative record for this

rulemaking at EPA’s Water Docket, 401

M Street, SW., Washington, DC 20460,

Room L–102 between the hours of 9

a.m. and 3:30 p.m. on business days. For

access to docket materials, please call

(202) 260–3027 for an appointment

during the aforementioned hours. A

reasonable fee will be charged for

copying.

FOR FURTHER INFORMATION CONTACT:

Wendy Bell, (202) 260–9534, Permits

Division (4203), U.S. EPA, 401 M Street,

SW., Washington, DC 20460.

SUPPLEMENTARY INFORMATION:

Regulated entities

Entities potentially regulated by this

action are governmental entities

responsible for implementation of the

State Sewage Sludge Management

Program. Regulated entities include:

Category Examples of regulated entities

State government .................... States that request authorization of their State sewage sludge management program.

Federal government ................ EPA regional offices that approve State sewage sludge management programs.

Local government .................... Owners and operators of treatment works treating domestic sewage.

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities likely to be

regulated by this action. This table lists

the types of entities that EPA is now

aware could potentially be regulated by

this action. Other types of entities not

listed in the table could also be

regulated. To determine whether your

organization is regulated by this action,

you should carefully examine the

applicability criteria in parts 123 and

501 of title 40 of the Code of Federal

Regulations. If you have questions

regarding the applicability of this action

to a particular entity, consult the person

listed in the preceding ‘‘FOR FURTHER

INFORMATION CONTACT’’ section.

Information in the preamble is

organized as follows:

I. Background

A. Water Quality Act of 1987

B. EPA’s Sewage Sludge Management

Program

II. Discussion of Proposed Rule

A. General

B. Part 123

C. Part 501

III.Regulatory Requirements

A. Executive Order 12866

B. Executive Order 12875

C. Paperwork Reduction Act

D. Regulatory Flexibility Act

E. Unfunded Mandates

I. Background

Implementation of the Clean Water

Act (CWA) has increased the extent to

which wastewater is treated before

being discharged to surface waters. At

publicly owned treatment works

(POTWs), implementation of secondary

and advanced treatment requirements

under the NPDES Program has

improved effluent quality while

increasing the amount of sewage sludge

being generated. Proper management of

this growing amount of sewage sludge is

becoming increasingly important as

efforts to remove pollutants from

wastewater become more effective.

Several options exist for dealing with

these vast quantities of sewage sludge.

One such option is beneficial use. EPA

considers sewage sludge a valuable

resource since it contains nutrients and

has physical properties that make it

useful as a fertilizer and soil
Federal Register / Vol. 62, No. 47 / Tuesday, March 11, 1997 / Proposed Rules 11271

conditioner. Sewage sludge has been

used for its beneficial qualities on

agricultural lands, in forests, for

landscaping projects, and to reclaim

strip-mined land. EPA will continue to

encourage such practices.

Regulation of the use or disposal of

sewage sludge is important, however,

because improper use or disposal can

adversely affect surface water, ground

water, wetlands, and public health

through a variety of exposure pathways.

The multi-media nature of the risks and

exposure pathways requires a

comprehensive approach to protect

public health and the environment in

order to promote the beneficial use of

sewage sludge and ensure that solving

problems in one medium will not create

problems for another.

EPA recognizes that the term

‘‘biosolids’’ is now being used by

professional organizations and other

stakeholders in place of ‘‘sewage

sludge’’ to emphasize that it is a

resource that can be recycled

beneficially. EPA intends to work with

these stakeholders to establish a

definition for ‘‘biosolids’’ that is

consistent with the definition of

‘‘sewage sludge’’ in the CWA. In the

meantime, EPA encourages the use of

the term ‘‘biosolids’’ in order to promote

beneficial use of residuals of wastewater

treatment.

A. Water Quality Act of 1987

Section 406 of the Water Quality Act

of 1987, which amended section 405 of

the CWA, established a comprehensive

program for reducing the risks to public

health and the environment from the

use or disposal of sewage sludge,

including promulgation of sewage

sludge standards. Furthermore, the 1987

amendments required that all NPDES

permits issued to POTWs and other

treatment works treating domestic

sewage (TWTDS) contain conditions

implementing sewage sludge standards,

unless such conditions are included in

other permits. The other permits may

either be other federal permits or State

permits issued under approved State

programs. The amendments also

provided that the Administrator may

issue separate sewage sludge permits to

TWTDS that are not subject to section

402 of the CWA or to any of the other

listed permit programs. Moreover, the

amendments provided that the

standards for use or disposal are

enforceable directly against any user or

disposer of sewage sludge under section

405(e) of the CWA. In other words, a

TWTDS, as well as any user or disposer,

must comply with the standards by the

statutory compliance deadlines whether

or not a permit incorporating the

standards has been issued to the

TWTDS.

B. EPA’s Sewage Sludge Management

Program

In 1989, EPA published regulations

that establish the requirements and

procedures a State must follow to obtain

approval to operate a State sewage

sludge management program under

section 405(f)(1) of the CWA. These

regulations established the requirements

for States that chose to implement their

sewage sludge programs through

existing State National Pollutant

Discharge Elimination System (NPDES)

programs (40 CFR part 123) as well as

requirements for States that chose nonNPDES sewage sludge programs (40 CFR

part 501) as the vehicle for managing

sewage sludge in their States. These

regulations also revised the NPDES

permit requirements and procedures

(parts 122 & 124) to incorporate sewage

sludge permitting requirements. See 54

FR 18716 (May 2, 1989). On February

19, 1993 (58 FR 9404) these regulations

were modified to allow for phased

permit application submittal

procedures. The basic requirements and

procedures for States which seek EPA

approval to administer a sewage sludge

management program are the same

under Part 123 and Part 501. EPA

published the requirements in both

places based on the belief that States

that choose to add sewage sludge to

their NPDES program would find it

easier if the requirements and approval

procedures for the sewage sludge

program were included along with the

other NPDES requirements in Part 123.

State assumption of the sewage sludge

program is optional and until State

sewage sludge programs are authorized,

EPA will administer the program. Two

States (Utah and Oklahoma) have been

authorized at this time. EPA is working

with a number of other States seeking

authorization for the federal sewage

sludge permit and management

program.

In discussions with these States, EPA

found that the sewage sludge

management program regulations were

often a barrier to authorization. Given

the wide and successful regulation of

sewage sludge use or disposal by a

number of States, EPA undertook a

review of its regulations looking at ways

to simplify the approval process.

In order to provide greater flexibility

to the States, EPA is proposing

modifications to its sewage sludge

management program regulations that

accommodate more variations in State

programs. EPA stresses that its

willingness to allow greater variation in

the State permit programs does not

mean that the Agency will approve State

programs that do not provide adequate

public health and environmental

protection.

II. Discussion of Proposed Rule

A. General

EPA started the process that led to

today’s proposal by reviewing

information provided by States with

active State sewage sludge programs.

EPA then solicited input on two

successive draft proposals from various

stakeholders, including States,

associations and environmental groups.

Today’s proposal is an outgrowth of that

process and incorporates many of the

comments received on both drafts. EPA

today proposes changes to Parts 123 &

501 that will provide more flexibility to

States and ease the process of

authorization. Under the current

regulations, States that choose to

implement sludge requirements through

their NPDES program must meet the

requirements and follow the procedures

in Part 123. States that want to obtain

approval for an existing non-NPDES

program must comply with the

procedures and requirements in Part

501. However, these requirements for

authorization under an NPDES or other

type of program are very similar.

As part of an overall effort to

eliminate unnecessary regulations, EPA

is today proposing to delete the

provisions of Part 123 that contain State

program requirements applying solely to

sewage sludge. Under today’s proposal,

States seeking approval to operate a

State sewage sludge management

program under section 405(f)(1) would

meet the requirements and procedures

in Part 501 when submitting sewage

sludge management programs. A State

would be free to operate an approvable

sewage sludge management program as

part of its existing State NPDES

regulatory program or as part of its State

solid waste management program or as

part of another program. The

requirements and procedures for

approval are the same. Today’s proposal

is not intended to preclude States from

amending their existing, approved

NPDES programs to include sewage

sludge. In fact, EPA believes that many

States will choose this route when they

seek approval of their sewage sludge

programs. States that intend to rely on

their existing NPDES programs for

regulation of sewage sludge may need to

modify their program to comply with

Part 501.

All sewage sludge programs approved

under Part 501 must provide for citizen

suits and public participation in state

enforcement proceedings, whether a
11272 Federal Register / Vol. 62, No. 47 / Tuesday, March 11, 1997 / Proposed Rules

State program is managed through an

NPDES program or not. Section

501.17(d) contains the same

requirements for public participation in

State enforcement proceedings as

§ 123.27(d). Section 505 of the CWA

allows citizen suits to be brought for any

violation of Part 503 or an equivalent

State regulation.

Because existing Part 501 was

modeled on the NPDES program, States

that manage their sewage sludge

through solid waste or other programs

may have difficulties in meeting some of

its procedural requirements because

these programs have different

requirements. Today’s proposal

modifies some of the requirements in

Part 501 to make it easier for States with

well-run sewage sludge programs to

obtain approval for their programs.

B. Part 123

Part 123 establishes the program

requirements and approval procedures

for States that seek EPA approval to

administer an NPDES permit program

pursuant to section 402 of the CWA.

Today’s proposal would modify Part

123 by deleting certain specific

references to sewage sludge

requirements in order to make it clear

that all State sewage sludge programs

(both NPDES and non-NPDES) would be

subject to the requirements in Part 501.

The deleted references occur in

§§ 123.1, 123.2, 123.22, 123.24 through

123.26, and 123.45. The proposal also

amends §§ 123.42, 123.44, and 123.62

through 123.64 to clarify the crossreferences in the Part 123 sections that

apply to sewage sludge and NPDES

State programs.

C. Part 501

1. Purpose and Scope

Section 501.1 describes the general

requirements for EPA approval of a

State sewage sludge program. Today’s

proposal would modify § 501.1(b) to

explain that Part 501 specifies the

requirements and procedures for

approval of all State sludge management

programs, both NPDES and non-NPDES.

Section 501.1(d)(1) and the rest of

paragraph (d) have been renumbered

because the existing text does not have

a § 501.1(d)(2). Section 501.1(d)(1)

currently requires a State sludge

management program to have the

authority to address sewage sludge

transport and storage. Today’s proposal

would delete this requirement because

there are no Federal standards that

regulate the storage of sewage sludge for

less than two years or sewage sludge

transport. Where sewage sludge remains

on the land for longer than two years,

it is deemed to be surface disposal

rather than storage under 40 CFR

503.20(b) and is regulated under Part

503. EPA is considering development of

a guidance document to provide

information on appropriate sewage

sludge storage methods.

The existing language in this section

includes a requirement for State sewage

sludge programs to include Federal

facilities. This requirement is not being

changed in today’s proposal. A State

does not have to have Federal facility

authority for NPDES in order for its

sewage sludge program to be approved.

If a State does not have Federal facility

authority, these facilities would be

regulated under a non-NPDES program,

whether or not other facilities are

regulated under NPDES.

The proposed language in this section

would clarify that a State must have the

authority to regulate only those sewage

sludge management activities covered

by Part 503. A State would not need the

authority to regulate a practice not

covered by Part 503, such as making

bricks out of sewage sludge. The current

§ 501.1(d)(1)(ii) contains a list of the

covered sewage sludge use or disposal

practices. For consistency with the

terminology used in Part 503, today’s

proposal would delete the phrase

‘‘distribution and marketing’’ since this

sewage sludge use is regulated as ‘‘land

application,’’ and clarify that

‘‘landfilling’’ takes place at ‘‘municipal

solid waste landfills.’

Existing § 501.1(d)(1) contains a

reference to a nonexistent section—40

CFR 123.30. Today’s proposal replaces

this with a reference to a new paragraph

(m) that is added to this section.

Proposed § 501.1(m) describes the

requirements for a partial sewage sludge

program.

CWA Section 405(f) authorizes the

Administrator to approve State

programs which assure compliance with

section 405 requirements. Pursuant to

this authority, EPA is proposing in

today’s notice to allow partial sewage

sludge management programs under

Part 501. Proposed § 501.1(m) would

allow a State to submit a partial sewage

sludge management program covering

one or more of the sludge use and

disposal practices falling under the

jurisdiction of the administering State

agency or department. The State agency

seeking program approval would be

required to assume a complete

permitting program with respect to the

covered practice(s). Some States

regulate septage use and disposal under

different management programs than

sewage sludge. In the case of those

States, EPA would approve a partial

program for land application, for

example, that regulated only sewage

sludge and excluded septage from its

regulatory scope.

Section 405(f)(1) of the Clean Water

Act (CWA) requires that any NPDES

permit issued to a publicly owned

treatment works or other treatment

works treating domestic sewage must

include conditions to implement the

sewage sludge regulations issued under

Section 405(d) unless these conditions

have been included through certain

other specified permits, including

permits under a State permit program if

EPA determines ‘‘such programs assure

compliance with any applicable

requirements’’ of section 405. The

provisions of current § 501.1(c)(2)

require that any complete sludge

management program submitted for

approval must include such authority.

EPA is proposing to implement its

approval of partial programs in the same

manner. An approvable partial program

must include the authority to permit

both POTWs and other treatment works

associated with the identifiable use and

disposal option for which the State

seeks authorization.

With respect to the practice(s) covered

by the partial program, the State agency

would be required to meet the

requirements of CWA section 405, and

would have to be able to implement the

applicable requirements of 40 CFR part

503. The State must be able to clearly

identify who falls within the State

program, and there must be no area in

which authority over a particular group

is unclear.

The proposal would also clarify

requirements for the partial program

with respect to the Attorney General’s

Statement, the Program Description, and

the Memorandum of Agreement (MOA)

between EPA and the State.

In addition to the information

required for the Program Description

under § 501.12, the State submission

would have to explain how the program

will operate, including the relationship

between the partial program and the

unassumed part which would remain

under EPA control. In addition to the

information required for the MOA under

§ 501.14, the State submission would

have to delineate responsibilities of both

the State and EPA in administering the

partial program.

2. Definitions

Today’s proposal adds a definition of

‘‘TWTDS,’’ the acronym for ‘‘treatment

works treating domestic sewage.’’ The

acronym replaces the phrase throughout

the regulation.
Federal Register / Vol. 62, No. 47 / Tuesday, March 11, 1997 / Proposed Rules 11273

3. Program Description

In order to ensure that a State program

can be properly run, § 501.12 requires a

description of various program

elements. EPA does not believe the

current level of detail is necessary.

Today’s proposal would revise the

language in §§ 501.12(b) and 501.12(d)

to contain the information that EPA

believes is necessary in a program

description.

The current language in §§ 501.12(b)

(2) and (3) requests information on

program costs and funding sources for a

program’s first two years. This

information is necessary to show that a

State has the resources to properly carry

out a new sewage sludge management

program. Many States have had

programs established for many years.

For States that have at least 2 years of

active experience implementing a

sewage sludge regulatory program, cost

and funding information is not

necessary since they have already

shown that they have the necessary

resources to run effective programs. The

proposed language would require this

information only for State programs that

have been in existence for less than two

years.

The current language in § 501.12(d)

requires submittal of forms that the

State intends to use in its program.

EPA wants to ensure that the required

information is collected but does not

require use of specific forms. Therefore,

the proposed language would require

either submittal of forms or the

procedures used for obtaining

information.

EPA agrees with several commenters

that States should have an inventory of

all TWTDS but should not be required

to develop an inventory of land

application sites. The language in

proposed § 501.12(f) has been modified

accordingly.

4. Memorandum of Agreement With the

Regional Administrator

The proposed changes to § 501.14(a)

would clarify that the Regional

Administrator approves the

memorandum of agreement (MOA).

The proposed change to

§ 501.14(b)(1)(i) would clarify that

permit-related information is only

transferred from EPA to a State with

respect to the portion of the State

program for which the State has

obtained approval. For example, if a

State were seeking a partial program for

land application, information on

pending permit applications or

compliance information for incinerators

would not be transferred to the State.

The other changes in § 501.14(b)

would delete some of the current waiver

prohibitions. EPA believes that waiver

of review of permits for ‘‘Class 1 sludge

management facilities’’ is an issue that

should be decided by the affected State

and EPA Regional office. EPA believes

that the Regional Administrator should

be able to terminate a waiver, but only

after providing a written explanation of

the reason for the termination.

The current language in § 501.14(c)

requires all permit related documents to

be sent to EPA. The proposed language

would require documents to be sent

only when requested by EPA. This

would eliminate the transmission of

documents that EPA does not intend to

review. This change would not reduce

EPA’s ability to obtain any permit

related documents. Section 501.19

requires compliance with § 123.41, the

NPDES section that requires a State to

make available to EPA ‘‘any information

obtained or used in the administration

of a State program’.

Section 501.14 also States that the

Regional Administrator will normally

notify the State at least 7 days before an

EPA facility inspection. Today’s rule

would delete that language and allow

the region and State to decide whether

such a time period should be included

in the MOA.

5. Requirements for Permitting

The current provisions of § 501.15

describe the procedural requirements

that a State must follow in issuing

permits in order to obtain EPA

authorization to operate a section 405(f)

sewage sludge management program.

Many States operate well-managed

sewage sludge programs that are

organized differently than the NPDES

model. EPA believes that the specific

permitting requirements prescribed in

§ 501.15 are not always necessary to

ensure compliance with the part 503

regulations and may have provided

unnecessary obstacles to authorization

of State sludge management programs.

EPA considered removing the majority

of these requirements from § 501.15.

However, a number of States have laws

that prohibit the State’s adoption of

more stringent requirements than EPA.

EPA is concerned that removal of these

permitting procedural requirements—a

move aimed at simplifying the approval

process—may, because of these State

law provisions, have the perverse result

of requiring a State to modify its

existing program in order to obtain EPA

approval for the program. In this case,

deletion of the permitting requirements

could make the authorization process

more difficult for some States while

easing it for others. EPA is asking for

further information on this issue.

Today’s proposal would retain most

of the requirements for permitting but

would allow States to follow their

existing practices in many instances. In

some cases the Regional Administrator

would have to decide whether the

State’s procedural requirements are

comparable to those required by this

provision. EPA recognizes that this may

result in inconsistency in State program

implementation, but believes that

procedural inconsistency is not a

significant concern in this program and

that the added flexibility far outweighs

any potential problems. EPA requests

comments on this approach.

EPA is proposing to delete

§ 501.15(a)(2) that contains the specific

information requirements for permit

applications. Instead, in

§ 501.15(d)(1)(ii), EPA proposes to

require the information listed in 40 CFR

122.21(q). EPA proposed these revised

requirements on December 6, 1995 (60

FR 62546). EPA is currently reviewing

all comments received on that proposal.

As proposed, § 122.21(q) would reduce

the burden on permittees by allowing

State directors to waive information

requirements if they have access to

substantially identical information, and

by modifying the land application plan

requirements to require advance public

notice in the manner prescribed by State

and local law.

Today’s proposal would also remove

§§ 501.15(a) (3) and (4) because these

requirements are repeated in

§ 501.15(b). The CWA limits the terms

of NPDES permits to no more than five

years. Today’s proposal would modify

current § 501.15(a)(5) to allow a State to

issue non-NPDES sewage sludge permits

for terms of no more than 10 years. EPA

believes this is a good compromise

between those who want to limit all

sewage sludge permits to 5 years to

insure that the permitting authority is

aware of changed circumstances and

those who believe permits do not need

to expire, but should simply be

modified if circumstances change. EPA

realizes that some States issue permits

for longer than 10 years and requests

comments on this issue of how best to

use scarce resources effectively and

insure adequate protection of public

health and the environment.

Today’s proposal would modify

§ 501.15(b) to require that all permits

issued by the State include the listed

permit conditions unless comparable

conditions are provided for in the MOA.

This would provide flexibility to both

the Region and the State. This proposed

change is not intended to imply that

permittees can choose which conditions

to put into permits. EPA recognizes that

States have different types of permitting
11274 Federal Register / Vol. 62, No. 47 / Tuesday, March 11, 1997 / Proposed Rules

systems. Some of the permit conditions

in § 501.15(b) are established by States

as regulatory requirements for all

TWTDS. Other conditions are required

by 40 CFR part 503. Since all users or

disposers of sewage sludge must comply

with Part 503 whether or not they have

a permit, requirements contained in part

503 do not have to be repeated in a

permit to require compliance.

This section also contains several

other specific proposed changes.

Section 501.15(b)(10) would delete the

language that requires a minimum of

once per year monitoring. This change

is necessary if Part 503 is modified as

proposed to allow less than once per

year monitoring. This proposal was

published on October 25, 1995 (60 FR

54771).

The last sentence in § 501.15(b)(13)

would be deleted because this permit

condition has already been stated in

§ 501.15(b)(2). EPA is also proposing to

modify § 501.15(b)(14) to clarify that a

permittee that has applied for

reissuance of a permit does not need to

cease operations if the new permit is not

issued before the term of an existing

permit expires. This provision is

consistent with section 558(b) of the

Administrative Procedure Act that

provides for the continuing

effectiveness of permits and licenses

when the permittee has filed a timely

and sufficient application for renewal.

Today’s proposal would modify

§ 501.15(d) to require the listed permit

procedures unless comparable State

requirements are in place. This

provision would provide flexibility for

accommodating varying State

requirements that protect public health

and the environment.

EPA is proposing to change

§ 501.15(d)(1)(i) to clarify which

TWTDS must apply for a permit.

Applications are only required from

TWTDS whose use or disposal method

is regulated under part 503. A POTW

that made bricks out of all of its sewage

sludge would not be required to submit

an application. An industrial facility

(except a privately owned treatment

works treating domestic sewage) would

also not be required to apply at this time

because such facilities are not currently

covered by part 503. See 54 FR 18727

and 58 FR 9406.

Permit applications are to be

submitted to the State only for a use or

disposal practice for which the State has

obtained approval to operate a section

405(f) sewage sludge management

program. If a State implements a partial

program, permit applications for use or

disposal practices not covered by the

State program must still be submitted to

the EPA region.

Finally, if a TWTDS is covered under

a State’s sewage sludge general permit,

it would follow the State’s notification

procedures rather than submit an

individual permit application.

EPA is proposing to delete existing

§ 501.15(d)(1)(ii)(A). This provision was

intended to allow the permitting

authority to obtain applications for

incinerators and others who requested

site-specific pollutant limits before

other applications because these permits

would take the most time to issue and

incinerators were believed to pose the

greatest risk to public health. However,

there have been few requests for sitespecific permits. In addition, proposed

changes to Part 503 (60 FR 54771)

would make the incineration standard

totally self-implementing along with the

rest of the rule, i.e., the standard must

be met whether or not a permit is

issued. Therefore, this paragraph is no

longer necessary. As described in

§ 501.15(d)(1)(ii)(C), the Director may

require permit applications from any

TWTDS at any time if necessary to

protect public health and the

environment.

EPA is proposing to redesignate

existing § 501.15(d)(1)(ii)(B) as

§ 501.15(d)(1)(ii)(A) and to change the

regulatory citation for the required

application information.

EPA is proposing to redesignate

existing § 501.15(d)(1)(ii)(C) as

§ 501.15(d)(1)(ii)(B). This section lists

the limited background information

requested of non-NPDES TWTDS. EPA

is also proposing to modify proposed

§ 501.15(d)(1)(ii)(B)(3) to be consistent

with the full permit information

requirements as proposed in § 122.21(q).

If sewage sludge meets the ‘‘exceptional

quality’’ requirements, no additional

information is required about land

application sites or facilities that further

treat the sewage sludge.

Section 501.15(d)(4) currently

requires fact sheets for draft permits

containing case-by-case permit

conditions or land application plans.

They are also required for Class I sludge

management facilities or draft permits

that are the subject of widespread public

interest or raise major issues. EPA is

proposing to revise this section to

require a fact sheet only when a permit

is the subject of widespread public

interest or raises major issues. In

addition, EPA would revise this

provision to delete the list of the

specific information required to be

included in a fact sheet.

EPA is proposing these changes to

provide additional flexibility to States

in operating their sewage sludge permit

programs. EPA believes that the basis

for a permit should be available to the

public but does not believe that a fact

sheet is the only available option. For

example, in some States the basis for the

permit may be the State’s sewage sludge

regulations. In this situation a fact sheet

would not be necessary.

EPA is proposing to change

§ 501.15(d)(5) by inserting the phrase

‘‘meeting or hearing’’ in place of

‘‘hearing’’ throughout the section. This

change would simplify the approval

process for States whose public

participation requirements for permit

issuance call for public ‘‘meetings’’

rather than ‘‘hearings’’. This

modification in the regulations would

obviate the need in States with such

requirements for a change in State law

in order to obtain approval.

Today’s proposal would modify the

requirement that the State provide at

least a 30-day comment period on the

draft permit. Some States require public

notification of a permit application so

the public has the opportunity to review

the application and request a public

hearing before a draft permit is issued.

In this situation a 30-day comment

period after issuance of a draft permit

may not be necessary. Today’s proposal

would also delete the requirement for 30

days notice before a meeting or hearing.

These changes are not intended to

suggest that a State should not provide

an adequate comment period or

adequate advance notice of any hearing

or meeting. State law must provide the

public both timely and meaningful

opportunity to participate in its

permitting determinations. This means

that a State’s procedures must be

reasonably calculated to apprise the

public of the nature of any proposed

permitting action as well as provide the

public with an opportunity to submit its

view on the proposed permitting action.

Today’s proposal is merely intended

to allow the States the flexibility to

follow their current public notice

procedures that may provide for public

notice at different times in the

permitting process.

Proposed changes to § 501.15(d)(5)

would allow the State flexibility in the

method used to provide public notice.

The MOA could be used to specify

required methods, if deemed necessary

by an EPA Region.

6. Requirements for Enforcement

Authority

EPA is proposing to revise the

language of § 501.17 to clarify the intent

of the section. A State must have the

authority to assess civil penalties or

criminal fines in, at least, the amounts

listed. States are not required to impose

these or any other specific penalties in

any civil or criminal proceeding, and
Federal Register / Vol. 62, No. 47 / Tuesday, March 11, 1997 / Proposed Rules 11275

State law may, of course, authorize the

imposition of larger penalties.

7. Program Reporting to EPA

The current requirements in § 501.21

require extensive information on

noncompliance to be reported

semiannually to EPA by the State

program director. EPA is attempting to

streamline all of its reporting

requirements, including the information

requested from States. The proposal

would reduce the information required

from States and would require annual

reports that contain only the

information that EPA believes would be

of most value in reviewing a States’s

sludge management program.

8. Procedures for Revision of State

Programs

The current language in § 501.32

requires a State to revise its program

within one or two years of promulgation

of changes to the sewage sludge

regulations. The proposed change

would allow EPA and the State to agree

to a different schedule in the MOA. As

the MOA is part of the State program

submittal, comments on this or any

other issue in the MOA can be raised

when the State program is public

noticed in the Federal Register. Because

the sewage sludge regulations are

directly enforceable, TWTDS must

comply with any new Federal sewage

sludge requirements, whether or not the

State has modified its regulations to

conform with the Federal rule.

III. Regulatory Requirements.

A. Executive Order 12866

Under Executive Order 12866 (58 FR

51735, October 4, 1993), the Agency

must determine whether the regulatory

action is ‘‘significant’’ and therefore

subject to Office of Management and

Budget (OMB) review and the

requirements of the Executive Order.

The Order defines ‘‘significant

regulatory action’’ as one that is likely

to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

It has been determined that this rule

is not a ‘‘significant regulatory action’’

under the terms of Executive Order

12866 and is therefore not subject to

OMB review.

B. Executive Order 12875

Under Executive Order 12875 (58 FR

58093, October 28, 1993), entitled

Enhancing the Intergovernmental

Partnership, the Agency is required to

develop an effective process to permit

elected officials and other

representatives of State, local, and tribal

governments to provide meaningful and

timely input in the development of

regulatory proposals.

EPA began development of today’s

proposal by soliciting suggested changes

from a group of volunteer States. Their

suggestions were used to develop a first

draft of proposed rule changes that was

sent on February 7, 1996 to States,

tribes, environmentalists, and other

stakeholders. On May 10, 1996, EPA

sent out a second draft to the same

stakeholders. The comments received

on both drafts were used to develop

today’s rule.

C. Paperwork Reduction Act

The information collection

requirements for parts 123 and 501 were

approved by OMB under the Paperwork

Reduction Act, 44 U.S.C. 3501 et seq.

(See OMB 2040–0057, June 14, 1995.)

The proposed rule changes are designed

to streamline the regulatory process and

will not impose any new information

collection requirements.

D. Regulatory Flexibility Act

Under the Regulatory Flexibility Act

(RFA), 5 U.S.C. 601–612, EPA must

prepare a regulatory flexibility analyses

for regulations that have a significant

impact on a substantial number of small

entities.

Today’s proposal would only apply to

States seeking to obtain EPA

authorization for their State sewage

sludge permit programs and States are

not considered small entities under the

RFA. EPA is not proposing to establish

any requirements that are applicable to

small entities as defined by the statute.

Pursuant to section 605(b) of the

Regulatory Flexibility Act, 5 U.S.C.

605(b), the Administrator certifies that

this rule will not have a significant

economic impact on a substantial

number of small entities.

E. Unfunded Mandates

Title II of the Unfunded Mandates

Reform Act of 1995 (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,

EPA generally must 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, or

tribal governments, in the aggregate, or

to the private sector, of $100 million or

more in any one year. Before

promulgating an EPA rule for which a

written statement is needed, section 205

of the UMRA generally requires EPA to

identify and consider a reasonable

number of regulatory alternatives and

adopt the least costly, most costeffective or least burdensome alternative

that achieves the objectives of the rule.

The provisions of section 205 do not

apply when they are inconsistent with

applicable law. Moreover, section 205

allows EPA to adopt an alternative other

than the least costly, most cost-effective

or least burdensome alternative if the

Administrator publishes with the final

rule an explanation why that alternative

was not adopted.

Before EPA establishes any regulatory

requirements that may significantly or

uniquely affect small governments,

including tribal governments, it must

have developed under section 203 of the

UMRA a small government agency plan.

The plan must provide for notifying

potentially affected small governments,

enabling officials of affected small

governments to have meaningful and

timely input in the development of EPA

regulatory proposals with significant

Federal intergovernmental mandates,

and informing, educating, and advising

small governments on compliance with

the regulatory requirements.

Today’s rule contains no Federal

mandates under the regulatory

provisions of Title II of the UMRA for

State, local, or tribal governments or the

private sector because the UMRA

generally excludes from the definition

of ‘‘Federal intergovernmental mandate’’

duties that arise from participation in a

voluntary Federal program. In any

event, EPA has determined that this rule

does not contain a Federal mandate that

may result in expenditures of $100

million or more for State, local or tribal

governments or the private sector in any

one year. The proposed amendments

provide additional flexibility to the

States in complying with current

regulatory requirements and lesson the

burden on affected governments. As

noted above, there are no costs

associated with the changes proposed

today. Thus, today’s proposed rule is

not subject to the requirements in

sections 202 and 205 of the UMRA.
11276 Federal Register / Vol. 62, No. 47 / Tuesday, March 11, 1997 / Proposed Rules

EPA has determined that this rule

contains no regulatory requirements that

might significantly or uniquely affect

small governments. The proposed

amendments would not significantly

affect small governments because as

explained above, the proposed

amendments would provide additional

flexibility in complying with preexisting regulatory requirements. The

proposed amendments also would not

uniquely affect small governments

because the increased flexibility

provided by the proposed changes

would be available to POTWs operated

by small governments to the same extent

as to other sewage sludge users or

disposers.

List of Subjects

40 CFR Part 123

Confidential business information,

Hazardous materials, Reporting and

recordkeeping requirements, Sewage

disposal, Waste treatment and disposal,

Water pollution control, Penalties.

40 CFR Part 501

Confidential business information,

Environmental protection, Reporting

and recordkeeping requirements,

Publicly owned treatment works,

Sewage disposal, Waste treatment and

disposal.

Dated: February 28, 1997.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, parts 123 and 501 of title 40

of the Code of Federal Regulations are

proposed to be amended as follows:

PART 123—STATE PROGRAM

REQUIREMENTS

1. The authority citation for part 123

continues to read as follows:

Authority: The Clean Water Act, 33 U.S.C.

1251 et seq.

2. Section 123.1 is amended by

revising paragraphs (a) and (c) to read as

follows:

§ 123.1 Purpose and Scope.

(a) This part specifies the procedures

EPA will follow in approving, revising,

and withdrawing State programs and

the requirements States programs must

meet to be approved by the

Administrator under sections 318, 402,

and 405(a) (National Pollutant Discharge

Elimination System—NPDES) of the

CWA. This part also specifies the

procedures EPA will follow in

approving, revising, and withdrawing

State programs under section 405(f)

(sludge management programs) of the

CWA. The requirements that a State

sewage sludge management program

must meet for approval by the

Administrator under section 405(f) are

set out at 40 CFR part 501.

* * * * *

(c) The Administrator shall approve

State programs which conform to the

applicable requirements of this part. A

State NPDES program will not be

approved by the Administrator under

section 402 of CWA unless it has

authority to control the discharges

specified in sections 318 and 405(a) of

CWA. Permit programs under sections

318 and 405(a) will not be approved

independent of a section 402 program.

* * * * *

3. Section 123.2 is revised to read as

follows:

§ 123.2 Definitions.

The definitions in Part 122 apply to

all subparts of this part.

4. Section 123.22 is amended by

removing paragraph (f) and

redesignating paragraph (g) as paragraph

(f).

5. Section 123.24 is amended by

removing paragraph (d)(8).

6. Section 123.25 is amended by

revising the introductory text of

paragraph (a) and paragraph (a)(37) to

read as follows:

§ 123.25 Requirements for permitting.

(a) All State Programs under this part

must have legal authority to implement

each of the following provisions and

must be administered in conformance

with each, except that States are not

precluded from omitting or modifying

any provisions to impose more stringent

requirements:

* * * * *

(37) 40 CFR parts 129, 133, and

subchapter N.

* * * * *

7. Section 123.26 is amended by

revising paragraph (e)(5) to read as

follows:

§ 123.26 Requirements for compliance

evaluation programs.

* * * * *

(e) * * *

(5) Inspecting the facilities of all

major dischargers at least annually.

8. Section 123.42 is amended by

revising the introductory paragraph to

read as follows:

§ 123.42 Receipt and use of Federal

Information.

Upon approving a State permit

program, EPA shall send to the State

agency administering the permit

program any relevant information which

was collected by EPA. The

Memorandum of Agreement under

§ 123.24 (or, in the case of a sewage

sludge management program, § 501.14)

shall provide for the following, in such

manner as the State Director and the

Regional Administrator shall agree:

* * * * *

9. Section 123.44 is amended by

revising paragraphs (d)(1), (d)(2), (e),

and (j) to read as follows:

§ 123.44 EPA review of and objection to

State permits.

* * * * *

(d)* * *

(1) Shall consider all data transmitted

pursuant to § 123.43 (or, in the case of

a sewage sludge management program,

§ 501.21);

(2) May, if the information provided

is inadequate to determine whether the

proposed permit meets the guidelines

and requirements of CWA, request the

State Director to transmit to the

Regional Administrator the complete

record of the permit proceedings before

the State, or any portions of the record

that the Regional Administrator

determines are necessary for review. If

this request is made within 30 days of

receipt of the State submittal under

§ 123.43 (or, in the case of a sewage

sludge management program, § 501.21),

it shall constitute an interim objection

to the issuance of the permit, and the

full period of time specified in the

Memorandum of Agreement for the

Regional Administrator’s review shall

recommence when the Regional

Administrator has received such record

or portions of the record; and

* * * * *

(e) Within 90 days of receipt by the

State Director of an objection by the

Regional Administrator, the State or

interstate agency or any interested

person may request that a public

hearing be held by the Regional

Administrator on the objection. A

public hearing in accordance with the

procedures of § 124.12 (c) and (d) (or, in

the case of a sewage sludge management

program, § 501.15(d)(7)) shall be held,

and public notice provided in

accordance with § 124.10, (or, in the

case of a sewage sludge management

program, § 501.15(d)(5)), whenever

requested by the State or the interstate

agency which proposed the permit or if

warranted by significant public interest

based on requests received.

* * * * *

(j) The Regional Administrator may

agree, in the Memorandum of

Agreement under § 123.24 (or, in the

case of a sewage sludge management

program, § 501.14), to review draft

permits rather than proposed permits. In

such a case, a proposed permit need not
Federal Register / Vol. 62, No. 47 / Tuesday, March 11, 1997 / Proposed Rules 11277

be prepared by the State and transmitted

to the Regional Administrator for review

in accordance with this section unless

the State proposes to issue a permit

which differs from the draft permit

reviewed by the Regional Administrator,

the Regional Administrator has objected

to the draft permit, or there is significant

public comment.

10. Section 123.45 is amended by

removing paragraph (e).

11. Section 123.62 is amended by

revising paragraphs (b)(3), and (c) to

read as follows:

§ 123.62 Procedures for revision of State

programs.

* * * * *

(b)* * *

(3) The Administrator shall approve

or disapprove program revisions based

on the requirements of this part (or, in

the case of a sewage sludge management

program, 40 CFR part 501) and of the

CWA.

* * * * *

(c) States with approved programs

shall notify EPA whenever they propose

to transfer all or part of any program

from the approved State agency to any

other State agency, and shall identify

any new division of responsibilities

among the agencies involved. The new

agency is not authorized to administer

the program until approved by the

Administrator under paragraph (b) of

this section. Organizational charts

required under § 123.22(b) (or, in the

case of a sewage sludge management

program, § 501.12(b)) shall be revised

and resubmitted.

* * * * *

12. Section 123.63 is amended by

revising the introductory text of

paragraph (a) and paragraph (a)(4) to

read as follows:

§ 123.63 Criteria for withdrawal of State

programs.

(a) In the case of a sewage sludge

management program, references in this

section to ‘‘this part’’ shall be deemed

to refer to 40 CFR part 501. The

Administrator may withdraw program

approval when a State program no

longer complies with the requirements

of this part, and the State fails to take

corrective action. Such circumstances

include the following:

* * * * *

(4) Where the State program fails to

comply with the terms of the

Memorandum of Agreement required

under § 123.24 (or, in the case of a

sewage sludge management program,

§ 501.14).

* * * * *

13. Section 123.64 is amended by

revising the introductory text of

paragraph (a) and paragraph (b)(1) to

read as follows:

§ 123.64 Procedures for withdrawal of

State programs.

(a) A State with a program approved

under this part (or, in the case of a

sewage sludge management program, 40

CFR Part 501) may voluntarily transfer

program responsibilities required by

Federal law to EPA by taking the

following actions, or in such other

manner as may be agreed upon with the

Administrator.

* * * * *

(b) * * *

(1) Order. The Administrator may

order the commencement of withdrawal

proceedings on his or her own initiative

or in response to a petition from an

interested person alleging failure of the

State to comply with the requirements

of this part as set forth in § 123.63 (or,

in the case of a sewage sludge

management program, § 501.33). The

Administrator shall respond in writing

to any petition to commence withdrawal

proceedings. He may conduct an

informal investigation of the allegations

in the petition to determine whether

cause exists to commence proceedings

under this paragraph. The

Administrator’s order commencing

proceedings under this paragraph shall

fix a time and place for the

commencement of the hearing and shall

specify the allegations against the State

which are to be considered at the

hearing. Within 30 days the State shall

admit or deny these allegations in a

written answer. The party seeking

withdrawal of the State’s program shall

have the burden of coming forward with

the evidence in a hearing under this

paragraph.

* * * * *

PART 501—STATE SLUDGE

MANAGEMENT PROGRAM

REGULATIONS

14. The authority citation for part 501

continues to read as follows:

Authority: The Clean Water Act, 33 U.S.C.

1251 et seq.

15. Section 501.1 is amended by

revising paragraphs (b) and (d), and

adding paragraph (m) to read as follows:

§ 501.1 Purpose and scope.

* * * * *

(b) This part specifies the procedures

EPA will follow in approving, revising,

and withdrawing State sludge

management programs under section

405(f), and the requirements State

programs must meet to be approved by

the Administrator under section 405(f)

of CWA. Sludge Management Program

submissions may be developed and

implemented under any existing or new

State authority or authorities as long as

they meet the requirements of this part.

* * * * *

(d) In addition, any complete State

Sludge Management Program submitted

for approval under this part shall have

authority to address all sewage sludge

management activities used in the State

that are practiced or planned to be

practiced in the State and are covered

by 40 CFR part 503, unless the State is

applying for partial sludge program

approval in accordance with paragraph

(m) of this section. The State sludge

management program shall also be

applicable to all federal facilities in the

State. Sludge management activities

shall include as applicable:

(1) Land application,

(2) Landfilling in a Municipal Solid

Waste Landfill regulated under 40 CFR

part 258,

(3) Incineration,

(4) Surface disposal, and

(5) Any other sludge use or disposal

practices as may be regulated by 40 CFR

part 503.

* * * * *

(m) A State whose sludge permitting

program has not been approved under

part 501 may submit to the Regional

Administrator an application for

approval of a partial sewage sludge

program that meets the following

requirements:

(1) A partial program submission

must constitute a complete permitting

program covering one or more categories

of sewage sludge use or disposal. A

complete permitting program includes

the issuance of permits, the monitoring

of compliance and, in the event of

violations, enforcement action for all

TWTDS engaging in the sewage sludge

use or disposal practice that is the

subject of the partial program.

(2) The partial program submission

must also address the following

requirements:

(i) The Attorney General’s Statement,

in addition to the information required

by § 501.13, must clearly explain the

jurisdiction of the administering agency

or department;

(ii) The program description, in

addition to the information required by

§ 501.12, must explain in detail how the

program will operate, including which

use and disposal practice(s) the State

will cover. The program description

must also explain the relationship and

coordination between the proposed

partial sewage sludge program and that

part of the program for which EPA will

remain the permitting authority,

including a discussion of the division of
11278 Federal Register / Vol. 62, No. 47 / Tuesday, March 11, 1997 / Proposed Rules

permitting, enforcement, and

compliance monitoring responsibilities

between the State and EPA; and

(iii) The Memorandum of Agreement

between EPA and the State, in addition

to the information required by § 501.14,

must set out in detail the

responsibilities of EPA and the State in

administering the partial program,

including specific provisions for

transfer of information and

determination of which TWTDS are

included in the partial program.

16. Section 501.2 is amended by

adding a definition to read as follows:

§ 501.2 Definitions.

* * * * *

‘‘TWTDS’’ means treatment works

treating domestic sewage.

17. Section 501.12 is amended by

revising paragraphs (b), (d), (f)(1)(iv),

(f)(1)(v), and (f)(2), and removing

paragraph (f)(3) to read as follows:

§ 501.12 Program description.

* * * * *

(b) A description (including

organization charts) of the organization

and structure of the State agency or

agencies which will have responsibility

for administering the program. If more

than one agency is responsible for

administration of a program, the

responsibilities of each agency, and

their procedures for coordination must

be set forth, and an agency must be

designated as a ‘‘lead agency’’ (i.e., the

‘‘State sludge management agency’’) to

facilitate communications between EPA

and the State agencies having program

responsibility. If the State proposes to

administer a program of greater scope of

coverage than is required by federal law,

the information provided under this

paragraph shall indicate the resources

dedicated to administering the federally

required portion of the program. This

description shall include:

(1) A description of the general duties

and the total number of State agency

staff carrying out the State program;

(2) An itemization of the estimated

costs of establishing and administering

the program for the first two years after

approval including cost of the personnel

described in paragraph (b)(1) of this

section, cost of administrative support,

and cost of technical support, except

where a State is seeking authorization

for an established sewage sludge

management program that has been in

existence for a minimum of two years

and is at least as stringent as the

program for which the State is seeking

authorization; and

(3) An estimate of the sources and

amounts of funding for the first two

years after approval to meet the costs

listed in paragraph (b)(2) of this section,

except where a State is seeking

authorization for an established sewage

sludge management program that has

been in existence for a minimum of two

years and is at least as stringent as the

program for which the State is seeking

authorization.

* * * * *

(d) Copies of the permit, application,

and reporting forms or procedures the

State intends to employ in its program.

* * * * *

(f)(1) * * *

(iv) NPDES, UIC, RCRA, Clean Air

Act, and State permit number, if any,

and;

(v) Compliance status.

(2) States may submit either:

(i) Inventories which contain all of the

information required by paragraph (f)(1);

or

(ii) A partial inventory with a detailed

plan showing how the State will

complete the required inventory within

five years after approval of its sludge

management program under this part.

* * * * *

18. Section 501.14 is amended by

revising paragraphs (a), (b)(1)(i), (b)(2),

(b)(3), and (c) to read as follows:

§ 501.14 Memorandum of Agreement with

the Regional Administrator.

(a) Any State that seeks to administer

a program under this part shall submit

a Memorandum of Agreement. The

Memorandum of Agreement shall be

executed by the State Program Director

and the Regional Administrator and

shall become effective when approved

by the Regional Administrator. In

addition to meeting the requirements of

paragraph (b) of this section, the

Memorandum of Agreement may

include other terms, conditions, or

agreements consistent with this part and

relevant to the administration and

enforcement of the State’s regulatory

program. The Administrator shall not

approve any Memorandum of

Agreement which contains provisions

which restrict EPA’s oversight

responsibility.

(b) * * *

(1)(i) Provisions for the prompt

transfer from EPA to the State of

pending permit applications applicable

to the State program and any other

information relevant to program

operation not already in the possession

of the State Director (e.g., support files

for permit issuance, compliance reports,

etc.). If existing permits are transferred

from EPA to the State for

administration, the Memorandum of

Agreement shall contain provisions

specifying a procedure for transferring

the administration of these permits. If a

State lacks the authority to directly

administer permits issued by the federal

government, a procedure may be

established to transfer responsibility for

these permits.

* * * * *

(2) Provisions specifying classes and

categories of permit applications, draft

permits, and proposed permits that the

State will send to the Regional

Administrator for review, comment and,

where applicable, objection. These

provisions shall follow the permit

review procedures set forth in 40 CFR

123.44.

(3) The Memorandum of Agreement

shall also specify the extent to which

EPA will waive its right to review,

object to, or comment upon State-issued

permits.

* * * * *

(c) The Memorandum of Agreement

shall also provide for the following:

(1) The circumstances in which the

State must promptly send notices, draft

permits, final permits, or related

documents to the Regional

Administrator; and

(2) Provisions on the State’s

compliance monitoring and

enforcement program, including:

(i) Provisions for coordination of

compliance monitoring activities by the

State and by EPA. These may specify

the basis on which the Regional

Administrator will select facilities or

activities within the State for EPA

inspection; and

(ii) Procedures to assure coordination

of enforcement activities.

(3) When appropriate, provisions for

joint processing of permits by the State

and EPA for facilities or activities which

require permits from both EPA and the

State under different programs (see for

example 40 CFR 124.4).

(4) Provisions for modification of the

Memorandum of Agreement in

accordance with this part.

* * * * *

19. Section 501.15 is amended by

revising paragraph (a), the introductory

text of paragraph (b), paragraphs

(b)(10)(i), (b)(13), (b)(14), the

introductory text of paragraph (d),

paragraph (d)(1), and (d)(4) through

(d)(8), to read as follows:

§ 501.15 Requirements for permitting.

(a) General requirements. All State

programs under this part shall have

legal authority to implement each of the

following provisions and must be

administered in conformance with each,

except that States are not precluded

from omitting or modifying any

provisions to impose more stringent

requirements:
Federal Register / Vol. 62, No. 47 / Tuesday, March 11, 1997 / Proposed Rules 11279

(1) Confidentiality of information.

Claims of confidentiality shall be denied

for the following information:

(i) The name and address of any

permit applicant or permittee;

(ii) Permit applications, permits, and

sewage sludge data. This includes

information submitted on the permit

application forms themselves and any

attachments used to supply information

required by the forms.

(2) Duration of permits. (i) NPDES

permits issued to treatment works

treating domestic sewage pursuant to

section 405(f) of the CWA shall be

effective for a fixed term not to exceed

five years.

(ii) Non-NPDES Permits issued to

treatment works treating domestic

sewage pursuant to section 405(f) of the

CWA shall be effective for a fixed term

not to exceed ten years.

(3) Schedules of compliance—(i)

General. The permit may, when

appropriate, specify a schedule of

compliance leading to compliance with

the CWA and the requirements of this

part. Any schedules of compliance

under this section shall require

compliance as soon as possible, but not

later than any applicable statutory

deadline under the CWA.

(ii) Interim dates. If a permit

establishes a schedule of compliance

which exceeds one year from the date of

permit issuance, the schedule shall set

forth interim requirements and the date

for their achievement. The time between

interim dates shall not exceed six

months.

(iii) Reporting. The permit shall be

written to require that no later than 14

days following each interim date and

the final date of compliance, the

permittee shall notify the Director in

writing of its compliance or

noncompliance with the interim or final

requirements, or submit progress reports

if paragraph (a)(3)(ii) of this section is

applicable.

(b) Conditions applicable to all

permits. In addition to permit

conditions which must be developed on

a case-by-case basis in order to meet

applicable requirements of 40 CFR part

503, paragraphs (a)(1) through (3) of this

section, and permit conditions

developed on a case-by-case basis using

best professional judgment to protect

public health and the environment from

the adverse effects of toxic pollutants in

sewage sludge, all permits shall contain

the following permit conditions (or

comparable conditions as provided for

in the Memorandum of Agreement):

* * * * *

(10) Monitoring and records. (i) The

permittee shall monitor and report

monitoring results as specified

elsewhere in this permit with a

frequency dependent on the nature and

effect of its sludge use or disposal

practices. At a minimum, this shall be

as required by 40 CFR part 503.

* * * * *

(13) Reopener. If a standard for

sewage sludge use or disposal

applicable to permittee’s use or disposal

methods is promulgated under section

405(d) of the CWA before the expiration

of this permit, and that standard is more

stringent than the sludge pollutant

limits or acceptable management

practices authorized in this permit, or

controls a pollutant or practice not

limited in this permit, this permit may

be promptly modified or revoked and

reissued to conform to the standard for

sludge use or disposal promulgated

under section 405(d) of the CWA.

(14) Duty to reapply. If the permittee

wishes to continue an activity regulated

by this permit after the expiration date

of this permit, the permittee must apply

for a new permit.

* * * * *

(d) Permit procedures. All State

programs approved under this part shall

have the legal authority to implement,

and be administered in accordance

with, each of following provisions,

unless the Regional Administrator

determines that the State program

includes comparable or more stringent

provisions.

(1) Application for a permit. (i) Any

TWTDS whose sewage sludge use or

disposal method is covered by 40 CFR

part 503 and covered under the State

program, except TWTDS covered by

sewage sludge general permits, shall

complete, sign, and submit to the

Director an application for a permit

within the time specified in paragraph

(d)(1)(ii) of this section.

(ii)(A) TWTDS with a currently

effective NPDES permit must submit the

application information required by 40

CFR 122.21(q) when the next

application for NPDES permit renewal

is due.

(B) Other existing TWTDS not

addressed under paragraph (d)(1)(ii)(A)

of this section must submit the

information listed in paragraphs

(d)(1)(ii)(B)(1) through (5) of this

section, to the Director within one year

after publication of a standard

applicable to its sewage sludge use or

disposal practice(s). The Director shall

determine when such TWTDS must

submit a full permit application.

(1) Name, mailing address and

location of the TWTDS;

(2) The operator’s name, address,

telephone number, ownership status,

and status as Federal, State, private,

public or other entity;

(3) A description of the sewage sludge

use or disposal practices. Unless the

sewage sludge meets the requirements

of 40 CFR 122.21(q)(8)(iv), the

description shall include the name and

address of any facility where sewage

sludge is sent for treatment or disposal,

and the location of any land application

sites;

(4) Annual amount of sewage sludge

generated, treated, used or disposed (dry

weight basis); and

(5) The most recent data the TWTDS

may have on the quality of the sewage

sludge.

(C) Notwithstanding paragraph

(d)(1)(ii)(A) or (B) of this section, the

Director may require permit

applications from any TWTDS at any

time if the Director determines that a

permit is necessary to protect public

health and the environment from any

potential adverse effects that may occur

from toxic pollutants in sewage sludge.

(D) Any TWTDS that commences

operations after promulgation of an

applicable standard for sewage sludge

use or disposal shall submit an

application to the Director at least 180

days prior to the date proposed for

commencing operations.

(iii) The Director shall not begin the

processing of a permit until the

applicant has fully complied with the

application requirements for that

permit.

* * * * *

(4) Fact sheets. A fact sheet shall be

prepared for every draft permit which

the Director finds is the subject of

widespread public interest or raises

major issues. The fact sheet shall briefly

set forth the principal facts and the

significant factual, legal, methodological

and policy questions considered in

preparing the draft permit. The Director

shall send this fact sheet to the

applicant and, on request, to any other

person.

(5) Public notice of permit actions and

public comment period. (i) The Director

shall give public notice that the

following actions have occurred:

(A) A draft permit has been prepared.

At least 30 days shall be allowed for

public comment on the draft permit

unless there has been a previous public

comment period such as during the

permit application.

(B) A meeting or hearing has been

scheduled.

(ii) Methods. Public notice of

activities described in paragraph

(d)(5)(i) of this section shall be given in

the area affected by these activities by

any method reasonably calculated to
11280 Federal Register / Vol. 62, No. 47 / Tuesday, March 11, 1997 / Proposed Rules

give actual notice of the action in

question to any person potentially

affected or requesting notice of the

action, including publication of a notice

in a daily or weekly newspaper within

the area affected by the facility or

activity, press releases, or any other

forum or medium to elicit public

participation.

(iii) Contents—(A) All public notices.

All public notices issued under this part

shall contain the following minimum

information:

(1) Name and address of the office

processing the permit action for which

notice is being given;

(2) Name and address of the permittee

or permit applicant and, if different, of

the facility or activity regulated by the

permit;

(3) A brief description of the activity

described in the permit application

(including the inclusion of land

application plan, if appropriate);

(4) Name, address and telephone

number of a person from whom

interested persons may obtain further

information, including copies of the

draft permit, fact sheet, and the

application;

(5) A brief description of the comment

procedures required by § 501.15(d)(6)

and the time and place of any meeting

or hearing that will be held, including

a Statement of procedures to request a

meeting or hearing (unless a meeting or

hearing has already been scheduled)

and other procedures by which the

public may participate in the final

permit decision; and

(6) Any additional information

considered necessary or proper.

(B) Public notices for meetings or

hearings. In addition to the general

public notice described in paragraph

(d)(5)(iii)(A) of this section, the public

notice of a meeting or hearing shall

contain the following information:

(1) Date, time and place of the

meeting or hearing; and

(2) A brief description of the nature

and purpose of the meeting or hearing,

including the applicable rules and

procedures.

(6) Public comments and requests for

public meetings or hearings. During the

public comment period, any interested

person may submit written comments

on the draft permit and may request a

public meeting or hearing, if no meeting

or hearing has already been scheduled.

A request for a public meeting or

hearing shall be in writing and shall

State the nature of the issues proposed

to be raised in the meeting or hearing.

All comments shall be considered in

making the final decision and shall be

answered as provided in paragraph

(d)(8) of this section.

(7) Public meetings or hearings. The

Director shall hold a public meeting or

hearing whenever he or she finds, on

the basis of requests, a significant degree

of public interest in a draft permit. The

Director may also hold a public meeting

or hearing at his or her discretion, (e.g.,

where such a hearing might clarify one

or more issues involved in the permit

decision).

(8) Response to comments. At the

time a final permit is issued, the

Director shall issue a response to

comments. The response to comments

shall be available to the public, and

shall:

(i) Specify which provisions, if any, of

the draft permit have been changed in

the final permit decision, and the

reasons for the change; and

(ii) Briefly describe and respond to all

significant comments on the draft

permit raised during the public

comment period or during any meeting

or hearing.

* * * * *

20. Section 501.17 is amended by

revising paragraphs (a)(3) and (b)(1) to

read as follows:

§ 501.17 Requirements for enforcement

authority.

(a)* * *

(3)* * *

(i) Civil penalties shall be recoverable

for the violation of any permit

condition; any applicable standard or

limitation; any filing requirement; any

duty to allow or carry out inspection,

entry or monitoring activities; or any

regulation or orders issued by the State

Program Director. The State shall at a

minimum, have the authority to assess

penalties of up to $5,000 a day for each

violation.

(ii) Criminal fines shall be recoverable

against any person who willfully or

negligently violates any applicable

standards or limitations; any permit

condition; or any filing requirement.

The State shall at a minimum, have the

authority to assess fines of up to $10,000

a day for each violation. States which

provide the criminal remedies based on

‘‘criminal negligence,’’ ‘‘gross

negligence’’ or strict liability satisfy the

requirement of this paragraph (a)(3)(ii).

(iii) Criminal fines shall be

recoverable against any person who

knowingly makes any false Statement,

representation or certification in any

program form, or in any notice or report

required by a permit or State Program

Director, or who knowingly renders

inaccurate any monitoring device or

method required to be maintained by

the State Program Director. The State

shall at a minimum, have the authority

to assess fines of up to $5,000 for each

instance of violation.

(b)(1) The civil penalty or criminal

fine shall be assessable for each instance

of violation and, if the violation is

continuous, shall be assessable up to the

maximum amount for each day of

violation.

* * * * *

21. Section 501.21 is revised to read

as follows:

§ 501.21 Program reporting to EPA.

The State Program Director shall

prepare annual reports as detailed in

this section and shall submit any reports

required under this section to the

Regional Administrator. These reports

shall serve as the main vehicle for the

State to report on the status of its sludge

management program, update its

inventory of sewage sludge generators

and sludge disposal facilities, and

provide information on incidents of

noncompliance. The State Program

Director shall submit these reports to

the Regional Administrator according to

a mutually agreed-upon schedule. The

reports specified in this section may be

combined with other reports to EPA

(e.g., existing NPDES or RCRA reporting

systems) where appropriate and shall

include the following:

(a) A summary of the incidents of

noncompliance which occurred in the

previous year that includes:

(1) The non-complying facilities by

name and reference number;

(2) The type of noncompliance, a brief

description and date(s) of the event;

(3) The date(s) and a brief description

of the action(s) taken to ensure timely

and appropriate action to achieve

compliance;

(4) Status of the incident(s) of

noncompliance with the date of

resolution; and

(5) Any details which tend to explain

or mitigate the incident(s) of

noncompliance.

(b) Information to update the

inventory of all sewage sludge

generators and sewage sludge disposal

facilities submitted with the program

plan or in previous annual reports,

including:

(1) Name and location;

(2) NPDES, UIC, RCRA, Clean Air Act,

and State permit number, if any;

(3) Sludge management practice(s)

used; and

(4) Sludge production volume.

22. Section 501.32 is amended by

revising paragraph (a) to read as follows:

§ 501.32 Procedures for revision of State

programs.

(a) Any approved State program

which requires revision to comply with
Federal Register / Vol. 62, No. 47 / Tuesday, March 11, 1997 / Proposed Rules 11281

amendments to federal regulations

governing sewage sludge use or disposal

(including revisions to this part) shall

revise its program within one year after

promulgation of applicable regulations,

unless either the State must amend or

enact a statute in order to make the

required revision, in which case such

revision shall take place within 2 years;

or a different schedule is established

under the Memorandum of Agreement.

* * * * *

[FR Doc. 97–5879 Filed 3–10–97; 8:45 am]

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