Water Pollution Control; Program Modification Application by Wisconsin to Administer the Sludge Management (Biosolids) Program

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of application and public comment period.

SUMMARY:

Pursuant to 40 CFR 123.62 and 40 CFR part 501, the State of Wisconsin has submitted to EPA an application to modify the existing Wisconsin Pollutant Discharge Elimination System (WPDES) program to include administration and enforcement of the sludge management (biosolids) program where it has jurisdiction. Specifically, the State is seeking approval of a sludge management program which addresses the land application of sludge, surface disposal of sludge, and the landfilling of sludge. Wisconsin is not seeking approval for the incineration of sludge or the land application of septage. The state's sludge management program will not extend to “Indian Country” as defined in 18 U.S.C. 1151, and will not include lands within the exterior boundaries of Indian reservations within or abutting the State of Wisconsin, as they are not seeking approval for these areas at this time. According to the state's proposal, this program would be administered by the Wisconsin Department of Natural Resources (WDNR).

The application from Wisconsin is complete and is available for inspection and copying. Public comments are requested and encouraged.

DATES:

Public comments are to be received or postmarked on or before June 22, 2000.

ADDRESSES:

Send written comments to: Rebecca Harvey, Chief, NPDES Support and Technical Assistance Branch (WN-16J), U.S. Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604-3590.

You may inspect, and copy at a minimal charge, the documents relevant to Wisconsin's submittal at the following addresses from 8:00 a.m. to 4:00 p.m., Monday through Friday, excluding holidays, at the: WDNR, Bureau of Watershed Management, 101 South Webster Street, Madison, Wisconsin 53707, contact: Greg Kester, (608) 267-7611; WDNR-Southeast Region, 2300 North Martin Luther King Jr. Dr., P.O. Box 12436, Milwaukee, WI 53212, contact: Jim Fratrick, (414) 263-8632; WDNR-Northeast Region, 1125 North Military, P.O. Box 10448, Green Bay, WI 54307, contact: Jeff Haack, (920) 492-5811; WDNR-Northern Region-Park Falls, 875 South 4th Ave., P.O. Box 220, Park Falls, WI 54552, contact: Jim Hansen, (715) 762-4684 ext. 120; WDNR-South Central Region, 3911 Fish Hatchery Rd., Fitchburg, WI 53711, contact: Roy Lembcke, (608) 275-3283; WDNR-West Central Region, 1300 W. Clairemont St., P.O. Box 4001,Eau Claire, WI 54702-4001, contact: Paul LaLiberte, (715) 839-3724; and at the EPA Regional Office in Chicago at the address appearing earlier in this notice, contact: David Soong, (312) 886-0136. Copies of the complete submittal can be obtained at a cost of 10 cents per page (roughly $280.00 for the complete submittal) from WDNR. Requests for copies should be addressed to Greg Kester, Wisconsin Department of Natural Resources at the address provided above or at telephone number (608) 267-7611.

FOR FURTHER INFORMATION CONTACT:

David Soong, NPDES Support and Technical Assistance Branch, (WN-16J), EPA, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604-3590, phone number: (312) 886-0136.

SUPPLEMENTARY INFORMATION:

Throughout this document “we”, “us”, or “our” means EPA.

Table of Contents

I. Introduction

II. What was submitted in Wisconsin's application for sludge management program approval?

III. Are there variations between Wisconsin's sludge management program regulations and the federal sludge regulations, 40 CFR Part 503?

IV. Can the public comment on Wisconsin's program submittal?

V. Is a public hearing scheduled?

VI. Has a decision been made regarding Wisconsin's program?

VII. If EPA approves Wisconsin's WPDES program modification, what is the effect of that decision?

VIII. Would EPA's Approval Affect Indian Country (18 U.S.C. 1151) in Wisconsin?

IX. Administrative Requirements

A. Executive Order 12866: Regulatory Planning and Review

B. Executive Order 13045: Children's Health Protection

C. Executive Order 13084: Consultation and Coordination with Indian Tribal Governments

D. Executive Order 13132: Federalism

E. Regulatory Flexibility Act

F. Unfunded Mandates Reform Act

G. National Technology Transfer and Advancement Act

H. Paperwork Reduction Act

I. Introduction

Wisconsin has regulated sewage sludge quality and beneficial reuse under state authority since 1977. Section 405 of the Clean Water Act (CWA or Act), 33 U.S.C. 1345, created the federal 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 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. To obtain such approval, the state must show, among other things, that it has authority to issue permits which comply with the Act, authority to impose civil and criminal penalties for permit violations, and authority to ensure that the public is given notice and opportunity for a hearing on each proposed permit. The requirements for state sludge management program approval are listed in 40 CFR part 501.

II. What Was Submitted in Wisconsin's Application for Sludge Management Program Approval?

Wisconsin's application for sludge management program approval contains a letter from the Secretary of WDNR requesting program approval, an Attorney General's Statement, copies of pertinent state statutes and regulations, amendments to the WPDES Program Description, and proposed amendments to the WDNR/EPA Memorandum of Agreement (MOA) to be executed by the Regional Administrator, Region 5, EPA, and the Secretary, Wisconsin Department of Natural Resources.

The Secretary's letter of May 26, 1998, requested that EPA approve the state's sludge management program as a modification to their WPDES program. On March 8, 1999, the Secretary limited the state's request to all sludge activities within the State except for those activities occurring within Indian Country.

The Attorney General's Statement includes citations to specific statutes, administrative regulations, and judicial decisions which demonstrate adequate authority to carry out the state's sludge management program. State statutes and regulations cited in the Attorney General's Statement are also included in the application.

The amendments to the WPDES Program Description include a description of the scope and organizational structure of the sludge management program, including a description of the general duties and the total number of state staff carrying out the program, a description of applicable state procedures, including permitting procedures, and administrative and judicial review procedures, and a description of the state's compliance tracking and enforcement program. It also includes an inventory of the facilities that are subject to regulations promulgated pursuant to 40 CFR part 503 and subject to the state's sludge management program.

The proposed amendments to the WDNR/EPA MOA include provisions for permit administration, enforcement and compliance monitoring, and annual reporting. The MOA has been signed by the Secretary of WDNR and will become effective upon the signature of the Regional Administrator of EPA, Region 5. The MOA does not limit the authority of EPA to take actions pursuant to its powers under the CWA, nor does it limit EPA's oversight responsibilities with respect to sludge management program administration.

III. Are There Variations Between Wisconsin's Sludge Management Program Regulations and the Federal Sludge Regulations, 40 CFR Part 503?

Following is a brief summary of and rationale for the main points of variance between Wisconsin's sludge management program and the 40 CFR part 503 sludge rules.

1. Wisconsin restricts application of sludge on agricultural land when it is frozen or snow covered. 40 CFR part 503 restricts sludge application on frozen or snow covered ground if there is a likelihood of sludge entering any waters or wetlands. Wisconsin believes that the likelihood of runoff exists on most sites in Wisconsin which are frozen or snow covered. Therefore, winter land application is restricted pursuant to Wisconsin regulations.

2. Wisconsin regulations require that sludge must be land applied at the agronomic rate for the crop grown taking all sources of nitrogen into account. This is required to preclude over application of nitrogen which could result in groundwater contamination through the leaching of nitrates. 40 CFR part 503 requires application at the agronomic rate but is silent about how to take other nitrogen sources into account. Wisconsin requires disclosure at the time of soil sampling of the anticipated rate and type of manure application, percent of legume forage left standing, and projected options of crops to be grown.

3. Wisconsin regulations establish more stringent site restrictions regarding the land application of sludge than federal requirements. Wisconsin regulations address additional environmental and public concerns such as setback distances from residences, public and private wells, property lines, waterways of various kinds, rural schools, and rural health care facilities. Separation distances to bedrock and groundwater, allowable slopes and soil permeability are also addressed.

4. Wisconsin regulates radium-226 in communities which have elevated concentrations of radium-226 in their water supply system, while 40 CFR part 503 does not specifically regulate radium-226. Wisconsin's concern with the land application of sludge with radium-226 is twofold. First, Wisconsin is concerned that the decay of radium-226 to radon gas could pose a problem if construction were to occur in the future on a site which had an unacceptably high soil concentration. Second, Wisconsin is concerned that radium may leach to groundwater if the soil concentration of radium-226 is elevated.

5. Sludge management plans, which are required by Wisconsin regulations, are intended to allow facilities some flexibility in how they comply with the administrative rules. WDNR encourages innovative alternate beneficial uses of sludge such as mine reclamation, silviculture, and other projects which are shown to be environmentally sound. Sludge management plans provide the forum for such proposals to be presented. 40 CFR part 503 does not specifically require the use of sludge management plans.

6. State regulations prohibit “Surface Disposal” as a sludge management option, even though 40 CFR part 503 allows surface disposal. The State believes that surface disposal is not an environmentally acceptable alternative because it may threaten groundwater quality and contradicts the beneficial reuse policy WDNR promotes.

7. Bulk exceptional quality sludge is exempt from most of the management requirements of Wisconsin's regulations. However, application on frozen or snow covered ground is restricted and the storage requirement, which is not federally required, applies to this material.

IV. Can the Public Comment on Wisconsin's Program Submittal?

It is requested and encouraged that the public comment on the state's sludge management program submittal. Copies of all submitted statements and documents will become a part of the record submitted to EPA. All comments or objections presented in writing and postmarked within 45 days of this notice to EPA, Region 5, will be considered by EPA before it takes final action on Wisconsin's request for program modification approval. Written comments should be submitted to Rebecca Harvey at the address given above.

The public is also encouraged to bring the foregoing to the attention of anyone interested in this matter.

V. Is a Public Hearing Scheduled?

At the time of this notice, a decision has not been made as to whether a public hearing will be held on Wisconsin's request for program modification. During the comment period, any interested person may request a public hearing by filing a written request which must state the issues to be raised to EPA, Region 5. The last day for filing a request for a public hearing is 45 days from the date of this notice and should be submitted to Rebecca Harvey at the above address. In appropriate cases, including those where there is significant public interest, EPA may hold a public hearing. Public notice of such a hearing will occur in the Federal Register and in enough of the largest newspapers in Wisconsin to provide statewide coverage and will be mailed to interested persons at least 30 days prior to the hearing.

VI. Has a Decision Been Made Regarding Wisconsin's Program?

The only decision that has been made is that Wisconsin has submitted a complete application. EPA sent a letter to the Secretary of the WDNR on March 14, 2000, stating that the state's application to modify the WPDES program to include a state sludge management program was complete. EPA has 90 days from the date of that letter to approve or disapprove Wisconsin'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 Wisconsin program modifications are approved, EPA will notify the State of the approval. Notice will be published in the Federal Register and, as of the date of program approval, EPA will suspend issuance of NPDES sludge management permits in Wisconsin (except, as discussed below, for those in “Indian Country”). The state's program will operate in lieu of the EPA-administered program where the State has authority. However, EPA will retain the right, among other things, to object to WPDES permits proposed to be issued by Wisconsin and to take enforcement actions for violations, as allowed under the CWA. If EPA disapproves Wisconsin's sludge management program, EPA will notify the State of the reasons for disapproval and of any revisions or modifications to the state program that are necessary to obtain approval.

VII. If EPA Approves the Wisconsin's WPDES Program Modification, What Is the Effect of That Decision?

If the Wisconsin program modification is approved, as of the date of program approval, there will be virtually no change in the program since Wisconsin has been regulating sludge management under state authority through its WPDES program. EPA will suspend issuance of NPDES sludge management permits in Wisconsin (except, as discussed below, for those in “Indian Country”). The state's program will operate in lieu of the EPA-administered program where the State has authority. Wisconsin will issue and administer permits for all the provisions for which it is authorized. After approval, EPA will transfer any pending sludge permit applications, completed permits, or pertinent file information to Wisconsin upon request. However, EPA will retain the right, among other things, to object to WPDES permits proposed to be issued by Wisconsin and to take enforcement actions for violations, as allowed under the CWA.

Approval will not impose additional requirements on the regulated community because the regulations by which Wisconsin will be implementing the sludge management program are already effective and will not be changed by EPA's approval.

VIII. Would EPA's Approval Affect Indian Country (18 U.S.C. 1151) in Wisconsin?

Wisconsin is not authorized to carry out its WPDES program in Indian Country, as defined in 18 U.S.C. 1151. This includes:

1. Lands within the exterior boundaries of the following Indian Reservations within or abutting the State of Wisconsin:

a. Bad River Indian Reservation.

b. Forest County Indian Reservation.

c. Ho-Chunk Nation Indian Reservation.

d. Lac Courte Oreilles Indian Reservation.

e. Lac Du Flambeau Indian Reservation.

f. Menominee Indian Reservation.

g. Oneida Indian Reservation.

h. Red Cliff Indian Reservation.

i. Sokaogon (Mole Lake) Indian Reservation.

j. St. Croix Indian Reservation.

k. Stockbridge-Munsee Indian Reservation.

2. Any land held in trust by the U.S. for any Indian tribe, and

3. Any other land, whether on or off a reservation that qualifies as Indian Country.

Therefore, if EPA approves the state's sludge management program, it will have no effect in Indian Country where EPA will continue to implement and administer the NPDES program.

In excluding Indian Country from the approval, we would not be making a determination that the State either has adequate jurisdiction or lacks jurisdiction over sources in Indian Country. The state's application does not include a request for approval within Indian Country at this time. Should the State of Wisconsin choose to seek program approval within Indian Country, it may do so without prejudice.

IX. Administrative Requirements

A. Executive Order 12866: Regulatory Planning and Review

The Office of Management and Budget (OMB) has exempted this regulatory action from the requirements of Executive Order 12866, entitled “Regulatory Planning and Review.”

B. Executive Order 13045: Children's Health Protection

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

If EPA approves the program modification, the action would not be subject to Executive Order 13045 because it does not involve decisions based on environmental health or safety risks.

C. Executive Order 13084: Consultation and Coordination With Indian Tribal Governments

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly affects or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments. If the mandate is unfunded, EPA must provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation.

In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

If EPA approves the program modification, the action would not be subject to Executive Order 13084 because it would not significantly or uniquely affect the communities of Indian tribal governments. Wisconsin is not authorized to implement the NPDES program in Indian Country. Therefore, the action would have no effect on Indian Country within the State.

D. Executive Order 13132: Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires 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.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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 various levels of government.”

Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that impose substantial direct compliance costs, and that is not required by statute, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by state and local governments, or EPA consults with state and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts state law unless the Agency consults with state and local officials early in the process of developing the proposed regulation.

If EPA approves the program modification, it will not have federalism implications. It will not have a substantial direct effect on 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, because this rule only effects one State. The approval would simply modify Wisconsin's existing program that they have voluntarily chosen to operate. Further, as a result of the approval, provisions of Wisconsin's sludge management program would apply in lieu of the equivalent federal program provisions implemented by EPA under CWA. Affected parties will be subject only to those authorized state program provisions, as opposed to being subject to both federal and state regulatory requirements. Thus, the requirements of section 6 of the Executive Order do not apply.

E. Regulatory Flexibility Act, as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq.

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures 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. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

If EPA approves the program modifications, the action will not have a significant impact on a substantial number of small entities because it does not impose any new requirements on small entities because small entities that generate or prepare sewage sludge for land application, landfilling, or surface disposal are already subject to the regulatory requirements under state and federal laws. With approval of the program modification, the state's program would apply in lieu of the equivalent federal program. Therefore, because the approval will not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

F. Unfunded Mandates Reform Act

Under Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a federal mandate that may result in estimated annual costs to state, local, or tribal governments, in the aggregate, or to the private sector, of $100 million or more. Under Section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that this notice does not include a federal mandate that may result in estimated annual costs of $100 million or more to either state, local, or tribal governments in the aggregate, or to the private sector. This federal action provides notice of availability of the state's submittal and requests comments on the state's desire to modify its WPDES program to include a state sludge management program. If EPA approves the program modification, the state's program would apply in lieu of the equivalent federal program, therefore, imposing no new requirements under state or local law. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, result from this action.

G. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

EPA believes that VCS are inapplicable to this action. Today's action does not involve technical standards.

H. Paperwork Reduction Act

Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., federal agencies must consider the paperwork burden imposed by any informational request contained in a proposed rule or a final rule. Today's action will not impose any information requirements upon the regulated community.

List of Subjects in 40 CFR Parts 123 and 501

• Environmental protection
• Administrative practice and procedures
• Indian lands
• Intergovernmental relations
• Waste treatment and disposal
• Water pollution control

Authority for parts 123 and 501: Clean Water Act 33, U.S.C. 1251 et seq.