[Federal Register Volume 70, Number 179 (Friday, September 16, 2005)]
[Notices]
[Pages 54744-54746]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-18422]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[FRL-7969-8]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Public notice; final approval of the revision of the North 
Dakota NPDES Program.

-----------------------------------------------------------------------

SUMMARY: On September 9, 2005, the Regional Administrator for Region 8 
of the United States Environmental Protection Agency approved a 
revision to the existing North Dakota Pollutant Discharge Elimination 
System program. With this revision, the State of North Dakota is now 
authorized to administer and enforce a pretreatment program where the 
State has jurisdiction. This program will be administered by the North 
Dakota Department of Health (NDDH), Division of Water Quality 
Department.

FOR FURTHER INFORMATION CONTACT: Curt McCormick (8P-W-P), U.S. EPA, 
Region 8, 999 18th Street, Suite 300, Denver, Colorado 80202-2466; 
telephone number (303) 312-6377; e-mail address <a href="/cdn-cgi/l/email-protection#28454b4b475a45414b43064b5d5a5c684d5849064f475e"><span class="__cf_email__" data-cfemail="98f5fbfbf7eaf5f1fbf3b6fbedeaecd8fde8f9b6fff7ee">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background

    Under section 402 of the Clean Water Act (CWA), 33 U.S.C. 1342, the 
EPA may issue permits allowing discharges of pollutants from point 
sources into waters of the United States, subject to various 
requirements of the CWA. These permits are known as National Pollutant 
Discharge Elimination System (NPDES) permits. Section 402(b) of the 
CWA, 33 U.S.C. 1342(b), allows states to apply to the EPA for 
authorization to administer their own NPDES permit programs. In June of 
1975, North Dakota's NPDES Program was approved by the EPA.
    Section 402(b) of the CWA, 33 U.S.C. 1345(c), authorizes any state 
desiring to administer its own industrial pretreatment program to do so 
in accordance with section 402(b)(8) and (9) of the CWA, following the

[[Page 54745]]

procedures and requirements set out in 40 CFR 403.10. On November 12, 
2003, North Dakota submitted an application to EPA requesting that EPA 
consider a revision to the State's NPDES program to include the 
pretreatment program.
    The EPA, having found that North Dakota's application meets all 
pertinent requirements in the CWA and the EPA's regulations, 
particularly 40 CFR parts 123 and 403, has approved North Dakota's 
application for primary authority to administer a pretreatment program.

II. Public Comments

    EPA provided a 30-day public comment period in the Federal Register 
notice dated March 29, 2004, and in three major newspapers in the State 
of North Dakota for any interested member of the public to comment on 
this application. In addition, individual mailings were sent to persons 
who would be interested in this action. No comments were received. No 
public hearing was requested, and none was held.

III. Indian Country

    North Dakota is not authorized to carry out its industrial 
pretreatment program in Indian country, as defined in 18 U.S.C. 1151. 
This includes, but is not limited to:
    1. Lands within the exterior boundaries of the following Indian 
reservations located within the State of North Dakota:
    A. Fort Totten Indian Reservation,
    B. Standing Rock Indian Reservation,
    C. Fort Berthold Indian Reservation, and
    D. Turtle Mountain Indian Reservation,
    2. Land held in trust by the U.S. for an Indian Tribe, and
    3. Other land which is ``Indian country'' within the meaning of 18 
U.S.C. 1151.

IV. Administrative Requirements

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

Paperwork Reduction Act

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

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 
601 et seq., generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities.
    As Regional Administrator for EPA Region VIII, I hereby certify, 
pursuant to 5 U.S.C. 605(b), that this action will not have a 
significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act

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

National Technology Transfer and Advancement Act

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

Executive Order 12866

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

Executive Order 12898--Environmental Justice

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

Executive Order 13045--Protection of Children

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

Executive Order 13175--Consultation With Tribes

    Under Executive Order 13175, no Federal agency may issue a 
regulation that has tribal implications, that imposes substantial 
direct compliance costs on Indian tribal governments, and that is not 
required by statute, unless the Federal Government provides the funds 
necessary to pay the direct

[[Page 54746]]

compliance costs incurred by the tribal governments or the agency 
consults with tribal officials early in the process of developing the 
proposed regulation. This action will not significantly affect any 
Indian tribe. As indicated above, North Dakota is not authorized to 
implement its pretreatment program in Indian country. The EPA will 
continue to administer the existing pretreatment program in Indian 
country in North Dakota.

Executive Order 13132--Federalism

    Executive Order 13132, entitled ``Federalism,'' dated August 10, 
1999 (64 FR 43255), requires the EPA to develop an accountable process 
to ensure ``meaningful and timely input by State and local officials in 
the development of regulatory policies that have federalism 
implications.'' The phrase ``policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on States, on the relationship 
between the National Government and States, or on the distribution of 
power and responsibilities among the various levels of government.'' 
This action does not have federalism implications. It will not have any 
substantial direct effects on the states, on the relationship between 
States and the National Government, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132. It will merely put in place a state 
regulatory program that is identical to the existing federal program.

Executive Order 13211--Energy Effects

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

    Dated: September 9, 2005.
Kerrigan G. Clough,
Acting Regional Administrator, Region 8.
[FR Doc. 05-18422 Filed 9-15-05; 8:45 am]
BILLING CODE 6560-50-P


</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>