Federal Register / Vol. 66, No. 40 / Wednesday, February 28, 2001 / Notices 12791

that Broadwing met the criteria set out

in the Audit Policy for a 100% waiver

of the gravity component of the penalty.

As a result, EPA waived the gravity

based penalty ($137,500) and proposed

a settlement penalty amount of eight

thousand, one hundred and eight

($8,108). This is the amount of the

economic benefit gained by Broadwing,

attributable to their delayed compliance

with the SPCC regulations. Broadwing

Communications Services Inc. has

agreed to pay this amount in civil

penalties. EPA and Broadwing

negotiated and signed an administrative

consent agreement, following the

Consolidated Rules of Procedure, 40

CFR section 22.13, on January 30, 2001

(In Re: Broadwing Communications

Services Inc., Docket No. MM–HQ–

2001–0015). This consent agreement is

subject to public notice and comment

under CWA section 311(b)(6), 33 U.S.C.

section 1321(b)(6).

Under CWA section 311(b)(6)(A), 33

U.S.C. 1321 (b)(6)(A), any owner,

operator, or person in charge of a vessel,

onshore facility, or offshore facility from

which oil is discharged in violation of

the CWA section 311 (b)(3), 33 U.S.C.

1321 (b)(3), or who fails or refuses to

comply with any regulations that have

been issued under CWA section 311 (j),

33 U.S.C. 1321(j), may be assessed an

administrative civil penalty of up to

$137,500 by EPA. Class II proceedings

under CWA section 311(b)(6) are

conducted in accordance with 40 CFR

Part 22.

The procedures by which the public

may comment on a proposed Class II

penalty order, or participate in a Clean

Water Act Class II penalty proceeding,

are set forth in 40 CFR 22.45. The

deadline for submitting public comment

on this proposed final order is March

30, 2001. All comments will be

transferred to the Environmental

Appeals Board (‘‘EAB’’) of EPA for

consideration. The powers and duties of

the EAB are outlined in 40 CFR 22.04(a).

Pursuant to CWA section 311(b)(6)(C),

EPA will not issue an order in this

proceeding prior to the close of the

public comment period.

List of Subjects

Environmental protection.

Dated: February 5, 2001.

David A. Nielsen,

Director, Multimedia Enforcement Division,

Office of Enforcement and Compliance

Assurance.

[FR Doc. 01–4878 Filed 2–27–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

[FRL–6938–3]

State Program Requirements;

Approval of Application by Maine To

Administer the National Pollutant

Discharge Elimination System

(NPDES) Program; Maine

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Notice; Final approval of the

Maine Pollutant Discharge Elimination

System under CWA.

SUMMARY: On January 12, 2001, the

Regional Administrator for the

Environmental Protection Agency,

Region I, approved the application by

the State of Maine to administer and

enforce the Maine Pollutant Discharge

Elimination System (MEPDES) Program,

for all areas within the State, other than

Indian country regarding which EPA

has not yet made a final decision about

the applicability of State law. The

authority to approve State programs is

provided to EPA in section 402(b) of the

Clean Water Act (CWA). The State will

administer the approved program

through its Department of

Environmental Protection (DEP), subject

to continuing EPA oversight and

enforcement authority, in place of the

National Pollutant Discharge

Elimination System (NPDES) program

previously administered by the EPA in

Maine. The program is a partial program

to the extent described in the section of

this Notice entitled ‘‘Scope of the

MEPDES Program.’’ In making its

decision, the EPA considered and

addressed all comments and issues

raised during the public comment

period, except for those relating to

jurisdiction over Indian country which

remain under review as described

below.

DATES: Pursuant to 40 CFR 123.61(c),

the MEPDES program was approved and

became effective on January 12, 2001.

ADDRESSES: Questions or requests for

additional information may be

submitted to: Stephen Silva, USEPA

Maine State Office, 1 Congress Street—

Suite 1100 (CME), Boston, MA 02114–

2023 or Dennis Merrill, MEDEP,

Statehouse Station #17, Augusta, ME

04333–0017.

Copies of documents Maine has

submitted in support of its program

approval and copies of the comments

received on this request may be

reviewed during normal business hours,

Monday through Friday, excluding

holidays, at: EPA Region I, 11th Floor

Library, 1 Congress Street—Suite 1100,

Boston, MA 02114–2023, 617–918–1990

or 1–888–372–5427; and MEDEP, Ray

Building, Hospital Street, Augusta, ME.

FOR FURTHER INFORMATION CONTACT:

Stephen Silva at the address listed

above or by calling (617) 918–1561 or

Dennis Merrill at the address listed

above or by calling (207) 287–7788. Part

of the State’s program submission and

supporting documentation is available

electronically at the following Internet

address: http://www.state.me.us/dep/

blwq/delegation/delegation.htm.

SUPPLEMENTARY INFORMATION: Maine’s

application was described in the

Federal Register (64 FR 73552) on

December 30, 1999 in which EPA

requested comments. Notices of Maine’s

application were published in the

Bangor Daily News, Lewiston Sun

Journal and Portland Press Herald

newspapers on January 12, 2000. A

public hearing on the application was

held on February 16, 2000 in Augusta,

ME. EPA extended the comment period

on June 28, 2000 (65 FR 3989) and

August 4, 2000 (65 FR 6845) through

August 21, 2000, solely for the purpose

of taking further comment on the Indian

law issues.

In response to public comments,

Maine submitted a revised

Memorandum of Agreement on April

25, 2000 and a Supplemental Attorney

General’s Statement on June 2, 2000. In

addition, by letter dated September 19,

2000, the EPA proposed revisions to

Attachment A to the Memorandum of

Agreement. By letter from DEP

Commissioner Martha Kirkpatrick dated

September 26, 2000, the State agreed to

the revisions.

A summary of those public comments

received which relate to the final action

EPA has taken on the portion of Maine’s

program outside Indian country and the

EPA’s responses to those comments are

discussed below in the section of this

Notice entitled ‘‘Responsiveness

Summary.’’ (In this notice the term

Indian country refers to the land and

territory reserved or taken into trust for

the federally recognized Maine Indian

tribes pursuant to the Maine Indian

Claims Settlement Act, 25 U.S.C. 1721

et seq., and the Aroostook Bank of

Micmacs Settlement Act, Public Law

102–171, Nov. 26, 1991, 105 Stat. 1143,

including any disputed areas as

discussed further in this document.)

The State and EPA agreed to extend

the CWA section 402(c)(1) deadline for

EPA to make a decision on the

application through September 26,

2000, pursuant to 40 CFR 123.21(d).

However, because of the many complex

issues that were raised with respect to

the State’s program and the need to

12792 Federal Register / Vol. 66, No. 40 / Wednesday, February 28, 2001 / Notices

address them in a comprehensive and

thoughtful manner, the EPA did not

make a final decision by September 26,

2000. Thus the EPA suspended issuance

of NPDES permits in Maine on

September 26, 2000 as required by

section 402(c)(1) of the CWA. However,

failure to make a decision by the

September 26, 2000 deadline did not

mean that the State automatically

gained NPDES authority. It is EPA’s

interpretation that a State agency does

not gain NPDES authority unless and

until EPA approves the State program,

consistent with CWA section 402(b) and

40 CFR 123.1. As of January 12, 2001,

the State DEP is now authorized to issue

MEPDES permits under the CWA in all

areas of the State except for Indian

country. As discussed below, EPA

remains the permitting authority for the

NPDES program in Indian country

during the interim period, but must

suspend issuing such permits pursuant

to CWA section 402(c)(1).

A. Scope of the MEPDES Program

Maine is being approved to

administer both the NPDES permit

program covering point source

dischargers to State waters and the

pretreatment program covering

industrial sources discharging to

publicly owned treatment works. The

EPA and State initially had

contemplated that the State would

assume program responsibility in

phases, first for the permit program and

subsequently for the pretreatment

program. But in light of the delay in

approving the State’s program and since

it always was contemplated that the

State would assume responsibility for

the pretreatment program by now, both

components of the State’s program are

being approved now, to start at the same

time.

Maine is not being approved at this

time to regulate cooling water intake

structures under CWA section 316(b). In

response to a public comment, the EPA

has determined that the State currently

lacks the necessary statutory authority

to administer this NPDES program

element. Thus the State is being

approved to operate a partial permit

program, pursuant to CWA section

402(n)(4). At first, the State program

will cover all NPDES permitting

responsibilities other than under CWA

section 316(b). Sources with cooling

water intake structures subject to CWA

section 316(b) will need to obtain

permits from the State regulating their

discharges (including thermal

discharges regulated under CWA section

316(a)), but also will need to obtain

supplemental permits from the EPA

regulating their cooling water intake

structures pursuant to CWA section

316(b). The State has committed to

promptly seeking legislation to obtain

the needed additional statutory

authority. When such statutory

authority is obtained, the EPA will

determine after a further opportunity for

public comment whether to approve the

State to operate the CWA section 316(b)

program element.

The State is not applying for

authorization for the municipal sewage

sludge program at this time. EPA will

continue to regulate sewage sludge in

Maine in accordance with section 405 of

the Act and 40 CFR part 503.

Pursuant to CWA section 402(d), EPA

retains the right to object to MEPDES

permits proposed by MEDEP, and if the

objections are not resolved, to issue the

permits itself. EPA also will retain

jurisdiction over all NPDES permits it

has issued in Maine until MEDEP

reissues them as MEPDES permits.

Finally, the EPA and State have agreed

that the EPA may retain permitting

authority over draft permits for which

EPA has issued public notice at the time

of program approval, until final

issuance. A list of these permits that the

EPA may issue following the approval

of the State program is set forth in

Attachment A to the EPA-State

Memorandum of Agreement, as

amended.

To address questions from the

regulated community, EPA also has

prepared a guidance document entitled

‘‘Status of EPA Issued NPDES Permits

After Maine Program Approval.’’ Copies

of this document are available upon

request.

As part of operating the approved

program, the Maine DEP generally will

have the lead responsibility for

enforcement. However, the EPA will

retain its full statutory enforcement

authorities under CWA sections 308,

309, 402(i) and 504. Thus the EPA may

continue to bring federal enforcement

action under the CWA in response to

any violation of the CWA. In particular,

if the EPA determines that the State has

not taken timely enforcement action

against a violator and/or that its action

has not been appropriate, the EPA may

take its own enforcement action in

Maine.

B. Responsiveness Summary

The EPA received numerous public

comments concerning the Maine

program. However, EPA is not

addressing the many comments

concerning the State’s assertion of

jurisdiction and the applicability of

State law in Indian country, because the

Agency is taking no final action on these

issues at this time, as described below.

Other commenters urged the EPA to

approve the State’s program. The EPA

agrees that the State program should be

approved at this time outside Indian

country.

Several commenters who expressed

concerns about possible State

administration of the program in Indian

country also indicated some concern

about State administration of the

program outside those areas. These

comments are addressed in a

memorandum from Stephen Silva,

Director of EPA’s Maine Program,

entitled ‘‘Responses to Comments on

Maine General Program,’’ dated January

12, 2001.

Finally, the National Environmental

Law Center of the United States Public

Interest Group (‘‘NELC’’) submitted

extensive comments urging that the EPA

reject Maine’s program application on a

variety of grounds. These comments are

addressed in the following memoranda

from Jeffry Fowley of the EPA Office of

Regional Counsel: (i) ‘‘Response to

Comments Opposing Approval of Maine

to Administer the NPDES Program,’’

dated April 2000, (ii) ‘‘Further Response

to Comments Opposing Approval of

Maine to Administer the NPDES

Program,’’ dated May 9, 2000, and (iii)

‘‘Further Response to Comments

Opposing Approval of Maine to

Administer the NPDES Program,’’ dated

January 12, 2001.

The EPA Regional Administrator

hereby concurs with and adopts the

responses to comments set forth in the

four memoranda referenced above.

These memoranda, together with this

Federal Register Notice, constitute

EPA’s Responsiveness Summary. Copies

of the memoranda are available upon

request.

C. Status of Indian Country

EPA is not taking final action at this

time on Maine’s application to

administer its program in Indian

country. Maine has argued that the

Maine Indian Claims Settlement Act, 25

U.S.C. 1721–1735 (MICSA), makes State

law applicable and grants the State

jurisdiction to implement its program in

Indian country. EPA invited comment

on this question, and received strongly

conflicting views from the Maine Indian

tribes, the State, and interested parties

on both sides of the issue. On May 16,

2000 EPA received an opinion from the

Department of Interior (DOI)

interpreting how MICSA applies to the

question of the State’s jurisdiction over

water quality regulation in Indian lands

and territories. EPA made DOI’s opinion

available for public review, and invited

further comment on the question of

State jurisdiction in Indian lands and

Federal Register / Vol. 66, No. 40 / Wednesday, February 28, 2001 / Notices 12793

territories, as well as comment on the

geographic scope of those areas, See 65

FR 3989 (June 28, 2000) and 65 FR 6845

(August 4, 2000). In response to this

invitation, EPA received even more

extensive comments on both sides of the

question of the State’s jurisdiction.

In addition, the parties contested the

geographic scope of Indian country in

Maine. While there appears to be several

disputes about the boundaries of Indian

country, it appears that the only dispute

which implicates existing NPDES

permitted dischargers is the question of

the scope of the Penobscot Nation’s

reservation on the Penobscot River. DOI

has concluded that the Penobscot

Nation’s reservation includes the bed

and banks of the Penobscot River. Letter

from Edward B. Cohen to John P.

DeVillars, September 2, 1997 at 6. The

Penobscot Nation asserts that its

reservation includes the Penobscot

River and its branches from Indian

Island northward to the headwaters of

the river and its tributaries, including

the east and west branches, the

Mattawamkeag, and the Piscataquis

River. See Supplemental Public

Comments of the Penobscot Nation,

August 21, 2000 at 30. The State of

Maine argues that the reservation does

not include the Penobscot River bank to

bank, and is limited to the area from

Indian Island northward to the fork

where the east and west branches

divide, the so-called ‘‘Main Stem’’ of the

Penobscot River. Letter from Paul Stern

to Stephen Silva, August 18, 2000 at

1–2.

In light of the difficulty of

determining jurisdiction in Indian

country in Maine, EPA is further

considering the question of the State’s

jurisdiction in Indian lands and

territories. EPA will consult with the

U.S. Department of Justice in addition to

continuing to consult with DOI

regarding the interpretation of MICSA.

EPA is working to resolve this question

promptly. If EPA’s conclusion

concerning the jurisdictional question

makes it necessary to define the

geographic boundaries of Indian

country, EPA will work with DOI to

clarify which areas are within Indian

country in Maine and, thus, which

dischargers are covered by the State’s

program. But until EPA takes final

action on these issues, as an interim

step, EPA is not authorizing the State’s

program in Indian country, including

disputed areas.

EPA has not reached any final

conclusion concerning the boundaries

of Indian country, but for the purposes

of clarifying which facilities are covered

by the State program EPA has approved,

EPA has listed in Appendix 1 of this

notice the facilities that are not included

in the program EPA has authorized due

to the dispute over the applicability of

State law in Indian country. This list

includes all the currently permitted

NPDES facilities that appear to

discharge into waters where EPA has

received substantial arguments

disputing the status of those waters.

Generally speaking, EPA is temporarily

withholding trust lands for all the

Maine tribes, the reservations for the

Passamaquoddy Tribe at Pleasant Point

and Indian Township and for the

Penobscot Nation, and any disputed

areas. We are withholding the Penobscot

River extending from bank to bank of

the river, starting at Indian Island and

proceeding northward to the

headwaters, including all tributaries.

EPA has taken this approach to preserve

the status quo in Indian country until

the Agency takes final action on these

issues. In addition, we are temporarily

withholding the land owned by the

Aroostook Band of Micmac Indians

which the Band has applied to DOI to

place into trust. Temporarily

withholding this land will avoid the

disruption of removing this land from

the State’s program if EPA ultimately

determines that state environmental law

will not apply to the Micmac’s land

once it is taken into trust. Moreover,

temporarily withholding the Micmac’s

lands does not affect Maine’s program

substantially, because EPA is not aware

of any dischargers in Micmac lands.

This cautionary approach to

withholding action temporarily while

resolving jurisdictional disputes in

Indian country is consistent with the

federal government’s trust responsibility

to protect Indian interests in land and

jurisdiction. See HRI, Inc. v. E.P.A., 298

F.3d 1224, 1245 (10th Cir. 2000),

amended on denial of rehearing (March

30, 2000). Similarly, any new facilities

in Indian country that require an NPDES

permit while EPA is considering the

question of Maine’s jurisdiction in

Indian country are not included in the

program EPA has authorized.

The State of Maine has not agreed to

extend EPA’s deadline for acting on the

State’s program application in Indian

country in Maine. Therefore, pursuant

to CWA section 402(c)(1), EPA will

continue to suspend issuing or

modifying NPDES permits in these

areas. This suspension will remain in

effect until the Agency takes final action

in these areas or the State agrees to

extend the Agency’s deadline for action.

D. Other Federal Statutes

Endangered Species Act

Section 7(a)(2) of the Endangered

Species Act (ESA), 33 U.S.C. 1536(a)(2),

requires that federal agencies insure, in

consultation with the United States Fish

& Wildlife Service (FWS) and/or

National Marine Fisheries Service

(NMFS), that actions they authorize,

fund, or carry out are not likely to

jeopardize the continued existence of

listed threatened or endangered species

(listed species) or result in the

destruction or adverse modification of

critical habitat. Additionally, section

7(a)(4) of the ESA, 33 U.S.C. 1536(a)(4),

requires federal agencies to confer with

FWS and/or NMFS on any agency

action which is likely to jeopardize the

continued existence of any species

proposed to be listed as threatened or

endangered (proposed species) or result

in the destruction or adverse

modification of proposed critical

habitat.

EPA consulted with both FWS and

NMFS (the Services) under section

7(a)(2) of the ESA regarding the effects

of the MEPDES program approval on

listed species. Additionally, EPA

engaged in a conference with the

Services pursuant to section 7(a)(4) of

the ESA regarding the effects of the

action on the Gulf of Maine distinct

population segment of Atlantic salmon

(salmo salar), which had been a

proposed species. Following the

Services’ final listing of the wild

Atlantic salmon, EPA and the Services

converted that conference into a

consultation under section 7(a)(2) of the

ESA. EPA addressed issues raised

during the conference and consultation

by establishing coordination procedures

between EPA and the Services and by

providing assurances to the Services

that endangered species, and in

particular the recently listed wild

Atlantic salmon, will be protected. After

careful consideration, the Services

concluded in a biological opinion that

approving the MEPDES program is not

likely to jeopardize the continued

existence of the wild Atlantic salmon.

Further, the Services concluded that

approval of the MEPDES program is not

likely to adversely affect any other listed

species or critical habitat. The Services’

conclusion is based in part on

assurances provided by EPA to the

Services as described below that EPA

will coordinate its review of MEPDES

permits with the Services and use its

CWA oversight authority to assure that

water quality standards are met.

First, EPA intends to follow the

procedures described in the draft

Memorandum of Agreement Between

12794 Federal Register / Vol. 66, No. 40 / Wednesday, February 28, 2001 / Notices

the Environmental Protection Agency—

New England, Fish and Wildlife

Service, and National Marine Fisheries

Service Regarding Enhanced

Coordination Under the Clean Water

Act, the Endangered Species Act, and

the Magnuson-Stevens Fishery

Conservation and Management Act for

NPDES Permits Issued by the State of

Maine (April 19, 2000) (‘‘Draft EPA—

New England—Services MOA’’), or any

subsequently negotiated MOA for all

species. In addition, the Services sought

specific coordination procedures and

further assurances from EPA-Region 1

with regard to the recently listed wild

Atlantic salmon. On December 4, 2000,

the EPA Regional Administrator sent a

letter to the Regional Administrator of

the National Marine Fisheries Service

and the Acting Regional Director of the

U.S. Fish and Wildlife Service

specifying the oversight measures that

the EPA intends to implement with

respect to MEPDES permits to be issued

to salmon fish farms and hatcheries by

Maine. This letter affirmed EPA’s

commitment, based on EPA’s analysis of

current information including that

contained in the Services’ listing

documents, to utilize its CWA

authorities to ensure compliance with

Maine water quality standards by

ensuring that conditions to protect the

wild Atlantic salmon are included in

MEPDES permits for salmon fish farms

and hatcheries. Specifically, EPA

committed, in accordance with 40 CFR

123.44(c) and section 402(d) of the

CWA, that it will object to any permit

proposed by MEDEP authorizing

activities that would adversely affect the

wild Atlantic salmon where such

adverse effects would cause or

contribute to a failure of a water body

to meet State water quality standards,

unless such adverse effects are avoided

by incorporating permit conditions that

would protect the wild Atlantic salmon.

In the event EPA objects to a proposed

permit, and where that objection is not

resolved such that effects on the wild

Atlantic salmon resulting in a failure to

meet water quality standards are

avoided, EPA will assume permitting

authority for the subject facility. Any

permit issued by EPA will, following

consultation under section 7 of the ESA,

include conditions necessary to protect

the Wild Salmon. The EPA’s December

4, 2000 letter to the Services is included

in the record.

In addition, with respect to bald

eagles, the FWS sought assurances that

any permits issued by Maine would

require the monitoring plan included in

the Services’ August 18, 2000 biological

opinion on the EPA’s proposed

reissuance of NPDES permits for six

kraft pulp and paper mills in Maine.

The monitoring plan is designed to

analyze bird samples downstream of the

mills for pollutants which either have

historically or may still be discharged

by the mills in quantities likely too low

to be detected by direct effluent

sampling. In a letter dated May 2, 2000,

EPA provided the requested assurance

and will require, consistent with its

CWA oversight authority, that Maine

include the plan within permits it issues

to the mills. This letter, and the

biological opinion, are included in the

record.

On January 12, 2001, the Services

issued a biological opinion concluding

that in light of the EPA’s oversight

commitments, the approval of the Maine

State NPDES program is not likely to

jeopardize the continued existence of

the endangered wild Atlantic salmon.

No critical habitat has been designated

for this species; therefore none will be

affected. Further, the Services

concluded that approval of the Maine

NPDES program is not likely to

adversely affect any other listed species

or critical habitat. Issuance of the

biological opinion with these findings

concludes the consultation process

required by ESA section 7(a)(2) and

reflects the Services’ agreement with

EPA that the approval of the State

program meets the substantive

requirements of that provision.

The Magnuson-Stevens Fishery

Conservation and Management Act

Section 305(b)(3) of the MagnusonStevens Fishery Conservation and

Management Act requires all Federal

agencies to consult with NMFS on

actions undertaken by the Agency that

may affect Essential Fish Habitat (EFH).

EPA consulted with NMFS regarding

EFH in reviewing the MEPDES program

approval request, and responded to

NMFS recommendations for avoiding,

mitigating, or offsetting any impact from

EPA’s action in a letter dated March 28,

2000. This letter is included as part of

the record. As noted in that letter, as

part of EPA’s response to NMFS

recommendations EPA agreed to follow

the procedures described in the Draft

EPA—New England—Services MOA or

any subsequently negotiated MOA to

specifically take into account EFH when

coordinating its MEPDES permit review

with NMFS.

National Historic Preservation Act

Section 106 of the National Historic

Preservation Act, 16 U.S.C. 470(f),

requires Federal agencies to take into

account the effects of their undertakings

on historic properties and to provide the

Advisory Council on Historic

Preservation (ACHP) an opportunity to

comment on such undertakings. Under

the ACHP’s regulations (36 CFR part

800), the Agency consults with the

appropriate State Historic Preservation

Officer (SHPO) and/or Tribal Historic

Preservation Officer on federal

undertakings that have the potential to

affect historic properties listed or

eligible for listing in the National

Register of Historic Places. During EPA’s

review of the Maine NPDES application,

EPA engaged in discussions with the

Maine SHPO and sought public

comment regarding EPA’s determination

that approval of the State permitting

program would have no effect on

historic properties. As noted below, the

EPA also has held discussions with

Indian Tribes in Maine regarding any

potential effects of MEPDES program

approval on historic properties of

interest to Tribes.

On July 7, 1999, EPA sought the

Maine SHPO’s concurrence with its

determination that EPA’s approval of

Maine’s application would have No

Effect on historic properties in Maine.

The Maine SHPO provided EPA with a

determination that there would be ‘‘No

Historic Properties Affected’’ or ‘‘No

Adverse Effect’’ to historic properties in

Maine from EPA’s approval, on the

condition that MEDEP provides relevant

notice and information regarding draft

permits to the SHPO and coordinates

with the SHPO. On November 26, 2000

the SHPO and MEDEP entered into a

Memorandum of Understanding (MOU)

assuring the SHPO that it would receive

the requested notices. This MOU further

provides for coordination between

MEDEP and the SHPO to resolve any

identified issues to ensure that MEPDES

permits will comply with Maine water

quality standards and Maine laws

protecting historic properties. For those

permits with the potential to adversely

affect historic properties, MEDEP and

the SHPO agreed to seek ways to avoid,

minimize or mitigate any adverse effects

to historic properties stemming from the

proposed permit. Thus, EPA believes

that the agreement between MEDEP and

the SHPO satisfies the conditions

underlying the SHPO’s determination of

‘‘No Historic Properties Affected’’ or

‘‘No Adverse Effect’’ as a result of EPA’s

approval of Maine’s application.

In addition, EPA has engaged in

extensive discussions with the Maine

Tribes regarding any potential effects on

Tribal historic properties. In light of

certain complex jurisdictional issues

still being evaluated by EPA, today’s

program approval does not include

Indian country within the State of

Maine. EPA intends to continue

Federal Register / Vol. 66, No. 40 / Wednesday, February 28, 2001 / Notices 12795

discussions with the Maine Tribes

regarding any issues related to historic

properties of interest to the Tribes prior

to reaching a final decision on Maine’s

application within Indian country.

Coastal Zone Management Act

Pursuant to section 307(c)(1)(C) of the

Coastal Zone Management Act, Federal

agencies carrying out an activity which

affects any land or water use or natural

resource within the Coastal Zone of a

state with an approved Coastal Zone

Management Plan must determine

whether that activity is, to the

maximum extent practicable, consistent

with the enforceable requirements of the

Plan and provide its determination to

the State agency responsible for

implementation of the Plan for review.

Maine’s approved Coastal Zone

Management Plan is administered by

the Maine Office of State Planning.

Maine’s permit actions are themselves

subject to consistency review under

State law; thus approval of the MEPDES

program would not affect Maine’s

coastal zone and would be consistent

with the enforceable requirements of

Maine’s Coastal Zone Management Plan.

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 APA, constitutes a

‘‘license,’’ which, in turn, is the product

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 Administrative

Procedure Act (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 and

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 RFA, the

Agency would certify that approval of

the State’s proposed MEPDES 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 obligations upon

those subject to the State’s program.

Accordingly, the Regional

Administrator would certify that this

program, even if a rule, would not have

a significant economic impact on a

substantial number of small entities.

E. Notice of Decision

I hereby provide public notice that

EPA has taken final action authorizing

Maine to implement the NPDES

program in the areas outside disputed

Indian territory to the extent described

in this notice, and review of the issues

related to this action is available as

provided in CWA section 509(b)(1)(D).

EPA has not taken final action on the

issues related to the State’s jurisdiction

and the applicability of State law in

Indian country for the purposes of

implementing the NPDES program in

those areas, and review of those issues

is not available until EPA takes final

action on Maine’s program as it applies

in those areas.

Authority: This action is taken under the

authority of section 402 of the Clean Water

Act as amended, 42 U.S.C. 1342.

Dated: January 12, 2001.

Mindy S. Lubber,

Regional Administrator, Region I.

Appendix 1—Permitted Facilities in

Areas of Indian Country, Where EPA Is

Not Acting on Maine’s Program (NPDES

Permit Numbers/State Discharge

License Numbers)

Penobscot River Basin

Main Stem of the Penobscot River From

Indian Island to Fork

Howland (Municipal) (ME0101788/2632)

Mattawamkeag (Municipal) (ME0102245/

7568)

Lincoln (Municipal) (ME0101796/1479)

Lincoln Pulp and Paper (ME0002003/0381)

Bangor Hydro in West Enfield (ME0023388/

7529)

Beaver Wood Joint Venture (ME0023078/

6436)

Penobscot Indian Nation Indian Island

(ME0101311/2672)

Indeck Maine Energy (ME0023213/6116)

West Branch of the River Above the Fork

Bowater Great Northern in Millinocket

ME0000167/2227

Bowater Great Northern in East Millinocket

ME0000175/2228

Millinocket (Municipal) ME0100803/2680

East Millinocket (Municipal) ME0100196/

2683

Piscataquis Tributary

Guilford-Sangerville POTW ME0102032/

6792

Dover-Foxcroft POTW ME0100501/2633

Dover-Foxcroft Water District ME0102229/

7330

Milo POTW ME0100439/0865

Brownville POTW (Pleasant River)

ME0100099/0829

Unity College Inc. (Pleasant River)

ME0110167/1718

Mattawamkeag Tributary

Danforth (Municipal) ME0100161

Wheelabrator—Sherman Energy ME0023191

St. Croix River Basin

Passamaquoddy Tribal Council (ME0100773/

2561)

Passamaquoddy Water District (ME0102211/

7568)

[FR Doc. 01–4872 Filed 2–27–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

[FRL–6941–6]

Public Water System Supervision

Program Revision for the State of

North Carolina

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Notice.

SUMMARY: Notice is hereby given that

the State of North Carolina is revising its

approved Public Water System

Supervision Program. North Carolina

has adopted drinking water regulations

requiring consumer confidence reports

from all community water systems. EPA

has determined that this revision is no

less stringent than the corresponding

federal regulations. Therefore, EPA has

tentatively decided to approve this State

program revision.

DATES: All interested parties may

request a public hearing. A request for

a public hearing must be submitted by

March 30, 2001 to the Regional

Administrator at the address shown

below. Frivolous or insubstantial

requests for a hearing may be denied by

the Regional Administrator. However, if

a substantial request for a public hearing

is made by March 30, 2001, a public

hearing will be held. If no timely and

appropriate request for a hearing is

received and the Regional Administrator

does not elect to hold a hearing on his

own motion, this determination shall

become final and effective on March 30,

2001. Any request for a public hearing

shall include the following information:

(1) The name, address, and telephone

number of the individual organization,

or other entity requesting a hearing; (2)

A brief statement of the requesting

person’s interest in the Regional

Administrator’s determination and a