4768 Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / Proposed Rules

demonstration SIP uses November 15,

2007 as the ozone attainment date. The

chosen 2007 attainment date reflects the

statutory attainment date for the HGA

area, as the DFW area is downwind of

the HGA area and is affected by

transport from HGA.

V. Administrative Requirements

Under Executive Order 12866 (58 FR

51735, October 4, 1993), this proposed

action is not a ‘‘significant regulatory

action’’ and therefore is not subject to

review by the Office of Management and

Budget. This proposed action merely

approves state law as meeting federal

requirements and imposes no additional

requirements beyond those imposed by

state law. Accordingly, the

Administrator certifies that this

proposed rule will not have a significant

economic impact on a substantial

number of small entities under the

Regulatory Flexibility Act (5 U.S.C. 601

et seq.). Because this rule proposes to

approve pre-existing requirements

under state law and does not impose

any additional enforceable duty beyond

that required by state law, it does not

contain any unfunded mandate or

significantly or uniquely affect small

governments, as described in the

Unfunded Mandates Reform Act of 1995

(Pub. L. 104–4). For the same reason,

this proposed rule also does not

significantly or uniquely affect the

communities of tribal governments, as

specified by Executive Order 13084 (63

FR 27655, May 10, 1998). This proposed

rule will not have substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government, as

specified in Executive Order 13132 (64

FR 43255, August 10, 1999), because it

merely approves a state rule

implementing a federal standard, and

does not alter the relationship or the

distribution of power and

responsibilities established in the Clean

Air Act. This proposed rule also is not

subject to Executive Order 13045 (62 FR

19885, April 23, 1997), because it is not

economically significant.

In reviewing SIP submissions, EPA’s

role is to approve state choices,

provided that they meet the criteria of

the Clean Air Act. In this context, in the

absence of a prior existing requirement

for the State to use voluntary consensus

standards (VCS), EPA has no authority

to disapprove a SIP submission for

failure to use VCS. It would thus be

inconsistent with applicable law for

EPA, when it reviews a SIP submission,

to use VCS in place of a SIP submission

that otherwise satisfies the provisions of

the Clean Air Act. Thus, the

requirements of section 12(d) of the

National Technology Transfer and

Advancement Act of 1995 (15 U.S.C.

272 note) do not apply. The proposed

rule does not involve special

consideration of environmental justice

related issues as required by Executive

Order 12898 (59 FR 7629, February 16,

1994). As required by section 3 of

Executive Order 12988 (61 FR 4729,

February 7, 1996), in issuing this

proposed rule, EPA has taken the

necessary steps to eliminate drafting

errors and ambiguity, minimize

potential litigation, and provide a clear

legal standard for affected conduct. The

EPA has complied with Executive Order

12630 (53 FR 8859, March 15, 1988) by

examining the takings implications of

the rule in accordance with the

‘‘Attorney General’s Supplemental

Guidelines for the Evaluation of Risk

and Avoidance of Unanticipated

Takings’’ issued under the executive

order. This proposed rule does not

impose an information collection

burden under the provisions of the

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.).

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Attainment,

Hydrocarbons, Nitrogen oxides, Ozone,

Reporting and recordkeeping

requirements.

Authority: 42 U.S.C. 7401 et seq.

Dated: January 4, 2001.

Gregg A. Cooke,

Regional Administrator, Region 6.

[FR Doc. 01–1346 Filed 1–17–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 123

[FRL–6933–3]

Water Pollution Control; Program

Modification Application by South

Dakota To Administer the Sludge

Management (Biosolids) Program

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule; second notice of

application and public comment period.

SUMMARY: The State of South Dakota has

submitted an application to EPA to

revise the existing South Dakota

Pollutant Discharge Elimination System

(SDPDES) program to include

administration and enforcement of the

sludge management (biosolids) program.

According to the State’s proposal dated

March 23, 1998, this program would be

administered by the South Dakota

Department of Environment and Natural

Resources (SDDENR).

The application was described in a

Federal Register notice dated October 5,

2000 (65 FR 59385) and in notices

published in the Rapid City Journal and

the Sioux Falls Argus-Leader on October

20, 2000. Notices were mailed to

persons known to be interested in such

matters, including all persons on

appropriate State and EPA mailing lists

and all permit holders and applicants

within the State. There were no

comments received during the public

comment period. The Federal Register

notice provided for a 45–day comment

period but did not state that a public

hearing could be requested and would

be considered by EPA. Therefore, EPA

is extending the public comment period.

The application from South Dakota is

complete and is available for inspection

and copying. EPA has reviewed the

State’s request for delegation for

completeness and adequacy and has

found that the proposal meets Federal

equivalency regulations.

DATES: Comments on this proposed rule

received on or before March 5, 2001 will

be considered before issuing a final rule.

Comments postmarked after this date

may not be considered.

ADDRESSES: You can view and copy

South Dakota’s application for

modification from 8:00 a.m. until 5:00

p.m. Monday through Friday, excluding

holidays, at the South Dakota

Department of Environment and Natural

Resources; Joe Foss Building, Pierre,

South Dakota or at the EPA Regional

Office at 999 18th Street, Denver,

Colorado. Requests for copies should be

addressed to Kelli Buscher, South

Dakota Department of Environment and

Natural Resources at the above address

or at telephone number 605–773–3351.

(There will be a $15 charge for copies.)

Electronic comments are encouraged

and should be submitted to

brobst.bob@epa.gov or send written

comments to Robert Brobst, U.S. EPA/

8P–WP, 999 18th Street, Suite 300,

Denver, Colorado 80202–2466.

FOR FURTHER INFORMATION CONTACT:

Robert Brobst at the above address by

phone at (303) 312–6129, or by e-mail

at brobst.bob@epa.gov.

SUPPLEMENTARY INFORMATION: Section

405 of the Clean Water Act (CWA), 33

U.S.C. Section 1345, created the sludge

management program, allowing EPA to

issue permits for the disposal of sewage

sludge under conditions required by the

CWA. Section 405(c) of the CWA

provides that a state may submit an

Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / Proposed Rules 4769

application to EPA for administering its

own program for issuing sewage sludge

permits within its jurisdiction. EPA is

required to approve each such

submitted state program unless EPA

determines that the program does not

meet the requirements of Sections 304(i)

and/or 402(b) of the CWA or the EPA

regulations implementing those

sections.

South Dakota’s application for sludge

management program approval contains

a letter from the Governor requesting

program approval, an Attorney

General’s Statement, copies of pertinent

State statutes and regulations,

amendments to the SDPDES Program

Description, and amendments to the

SDDENR/EPA Memorandum of

Agreement (MOA) executed by the

Regional Administrator, Region 8, EPA,

and the Secretary, Department of

Environment and Natural Resources.

The State of South Dakota has existing

environmental self-evaluation laws and

rules. These provide evidentiary

privilege and limited immunity for

certain disclosures made in an

environmental self-evaluation. SDCL

section 1–40–35 provides that no

privilege or immunity exists for

information required to be collected,

developed, maintained, or reported to

the department according to State law,

rule, regulation, or permit.

South Dakota has incorporated

Federal sludge management regulations

by reference into its State rules. These

rules require record keeping and

reporting for certain technical

monitoring and assessment,

management practices, and certain

certifications of compliance. Because

these requirements and any requirement

in sludge permits would be excluded

from the self-evaluation privilege, EPA

believes that South Dakota has the

authority necessary to administer the

sludge management program to assure

protection of public health and the

environment, and invites comment on

this issue.

EPA discussed the SDDENR program

application with the South Dakota

Office of the U.S. Fish and Wildlife

Service and received their concurrence

dated June 29, 2000 stating that the

proposed program authorization was

unlikely to jeopardize the continued

existence of any endangered species or

threatened species, or result in the

destruction or adverse modification of

habitat of such species.

By Letter dated October 20, 1999, EPA

discussed the program application with

the South Dakota State Historic

Preservation Officer and received

concurrence by letter dated November 5,

1999. The State Historic Preservation

Officer determined that no historic

properties would be affected by the

addition of the biosolids program.

What are biosolids? Biosolids are, in

effect, a slow release nitrogen fertilizer

with low concentrations of other plant

nutrients. In addition to significant

amounts of nitrogen, biosolids also

contain phosphorus, potassium, and

essential micronutrients such as zinc

and iron. Many western soils are

deficient in micronutrients. Biosolids

are rich in organic matter that can

improve soil quality by improving water

holding capacity, soil structure and air

and water transport. Proper use of

biosolids can ultimately decrease

topsoil erosion. When applied at

agronomic rates (the rates at which

plants require nitrogen during a defined

growth period), biosolids provide an

economic benefit in addition to their

environmental benefits.

How do biosolids differ from sewage

sludge? Most simply, biosolids is the

new name for what had previously been

referred to as sewage sludge. Biosolids

are primarily treated organic solids at

wastewater treatment plants—with the

emphasis on the word treated—that are

suitable for recycling as a soil

amendment. Sewage sludge now refers

to untreated primary and secondary

organic solids. This differentiates

biosolids that have received

stabilization treatment at a municipal

wastewater treatment plant from other

types of existing sludge (such as oil and

gas field wastes) that cannot be

beneficially recycled as soil

amendments.

What are the traditional practices in

this region? Until 25 years ago, the

traditional practice in this Region was to

landfill or incinerate what was then

called sewage sludge. During the past

quarter century the practice changed to

recycling biosolids as soil amendments.

States in Region 8 recycle 85% of the

biosolids generated in the six state

Region.

What Are the Federal Requirements?

The EPA in 1993 set forth

requirements for management of all

biosolids generated during the process

of treating municipal wastewater,

commonly called the 503 rule. The 503

rule encourages the beneficial reuse of

biosolids, and establishes strict

standards under which wastewater

residuals can be beneficially recycled as

soil amendments. The EPA believes that

biosolids are an important resource that

can and should be safely recycled. The

503 rule is designed to protect public

health and the environment. Most of the

requirements were based on the results

of extensive multimedia risk assessment

and on more that 25 years of

independent research. The 503 rule

establishes standards for pathogen

destruction and for levels of metals that

can be present in biosolids. It also

governs the agricultural practices, site

restrictions, and crop harvesting

restrictions and the stability of the

materials by reducing the attraction of

disease vectors (such as flies).

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.

EPA held a public hearing on

December 2, 1999, in Badlands National

Park, South Dakota, and accepted public

comments on the question of the

location and the extent of Indian

Country within the State of South

Dakota. In a forthcoming Federal

Register notice, EPA will respond to the

comments that have been received and

more specifically identify Indian

Country areas in the State of South

Dakota.

Public Notice Procedures

Copies of all submitted statements

and documents shall become a part of

the record submitted to EPA. All

comments or objections presented in

writing to EPA Region 8 and

postmarked within 45 days of this

notice will be considered by EPA before

it takes final action on South Dakota’s

request for program modification

approval. All written comments and

questions regarding the sludge

management program should be

addressed to Robert Brobst at the above

address. The public is also encouraged

to notify anyone who may be interested

in this matter. A public hearing may be

requested. A public hearing will be held

if response to this notice indicates

significant public interest.

EPA’s Decision

EPA will consider and respond to all

significant comments received before

taking final action on South Dakota’s

request for Sludge program approval. If

no substantial comments are received,

4770 Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / Proposed Rules

EPA will approve South Dakota’s sludge

management program. The decision will

be based on the requirements of

Sections 405, 402 and 304(i) of the CWA

and EPA regulations promulgated

thereunder.

If the South Dakota program

modifications are approved, EPA will so

notify the State and anyone who has

submitted significant comments. Notice

will be published in the Federal

Register and, as of the date of program

approval, EPA will suspend issuance of

federal NPDES sludge management

permits in South Dakota (except, as

discussed above, for those dischargers

in ‘‘Indian Country’’). The State’s

program will operate in lieu of the EPAadministered program. However, EPA

will retain the right, among other things,

to object to SDNPDES permits proposed

by South Dakota and to take

enforcement actions for violations, as

allowed by the CWA.

If EPA disapproves South Dakota’s

sludge management program, EPA will

notify the State and anyone who

submitted significant comments of the

reasons for disapproval and of any

revisions or modifications to the State

program that are necessary to obtain

approval.

Regulatory Flexibility Act

Based on General Counsel Opinion

78–7 (April 18, 1978), EPA has long

considered a determination to approve

or deny a State NPDES program

submission to constitute an adjudication

because an ‘‘approval,’’ within the

meaning of the Administrative

Procedure Act (APA), constitutes a

‘‘licence,’’ which, in turn, is the project

of an ‘‘adjudication.’’ For this reason,

the statutes and Executive Orders that

apply to rulemaking action are not

applicable here. Among these are

provisions of the Regulatory Flexibility

Act (RFA), 5 U.S.C. 601 et seq. Under

the RFA, whenever a Federal agency

proposes or promulgates a rule under

section 553 of the APA, after being

required by that section or any other law

to publish a general notice of proposed

rulemaking, the Agency must prepare a

regulatory flexibility analysis for the

rule, unless the Agency certifies that the

rule will not have a significant

economic impact on a substantial

number of small entities. If the Agency

does not certify the rule, the regulatory

flexibility analysis must describe an

assess the impact of a rule on small

entities affected by the rule.

Even if the NPDES program approval

were a rule subject to the FRA, the

Agency would certify that approval of

the State proposed SDPDES program

would not have a significant economic

impact on a substantial number of small

entities. EPA’s action to approve an

NPDES program merely recognizes that

the necessary elements of an NPDES

program have already been enacted as a

matter of State law; it would, therefore,

impose no additional obligation upon

those subject to the State’s program.

Accordingly, the Regional

Administrator would certify that this

program, even if a rule, would not have

significant economic impact on a

substantial number of small entities.

Unfunded Mandates Reform Act

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,

and 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 WPA 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 lease 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 decision includes no Federal

mandates for State, local or tribal

governments or the private sector. The

Act excludes from the definition of a

‘‘Federal mandate’’ duties that arise

from participation in a voluntary

Federal program, except in certain cases

where a ‘‘federal intergovernmental

mandate’’ affects an annual federal

entitlement program of $500 million or

more which are not applicable here.

South Dakota’s request for approval of

its budget management program is

voluntary and imposes no Federal

mandate within the meaning of the Act.

Rather, by having its sludge

management program approved, the

State will gain the authority to

implement the program within its

jurisdiction, in lieu of EPA, thereby

eliminating duplicative State and

Federal requirements. If a State chooses

not to seek authorization for

administration of a sludge management

program, regulation is left to EPA.

EPA’s approval of state programs

generally may reduce compliance costs

for the private sector, since the State, by

virtue of the approval, may now

administer the program in lieu of EPA

and exercise primary enforcement.

Hence, owners and operators of sludge

management facilities or businesses

generally no longer face dual Federal

and State compliance requirements,

thereby reducing overall compliance

costs. Thus, today’s decision is not

subject to the requirements of sections

202 and 205 of the UMRA.

The Agency recognizes that small

governments may own and/or operate

sludge management facilities that will

become subject to the requirements of

an approved State sludge management

program. However, small governments

that own and/or operate sludge

management facilities are already

subject to the requirements in 40 CFR

parts 123 and 503 and are not subject to

any additional significant or unique

requirements by virtue of this program

approval. Once EPA authorizes a State

to administer its own sludge

management program and any revisions

to that program, these same small

governments will be able to own and

operate their sludge management

facilities or businesses under the

approved State program, in lieu of the

Federal program. Therefore, EPA has

determined that this document contains

no regulatory requirements that might

significantly or uniquely affect small

governments.

Dated: January 4, 2001.

William P. Yellowtail,

Regional Administrator, Region 8.

[FR Doc. 01–1347 Filed 1–17–01; 8:45 am]

BILLING CODE 6560–50–P