The State of Michigan has submitted a program modification application to the EPA to administer and enforce a sewage
sludge management program. Specifically, the state is seeking approval of a biosolids management program that
addresses the land application of biosolids, the EPA said.
According to the agency, Michigan is not seeking approval of the land application of domestic septage, surface disposal
of biosolids,
Under section 402 of the Clean Water Act (CWA), 33 U.S.C. 1342, 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 EPA for authorization to administer their own NPDES permit programs.
Section 405 of the Clean Water Act (CWA), 33 U.S.C. 1345, created the Federal biosolids management program,
requiring EPA to set standards for the use and disposal of biosolids and requiring EPA to include biosolids conditions in
some of the NPDES permits which it issues. The rules developed under section 405(d) are also self-implementing, and
the standards are enforceable whether or not a permit has been issued. Section 405(c) of the CWA provides that a
state may submit an application to EPA for administering its own biosolids program within its jurisdiction.
Based on General Counsel Opinion 78-7 (April 18, 1978), EPA has long considered a determination to approve or deny
a State Clean Water Act (CWA) program submission to constitute an adjudication because an ``approval,'' within the
meaning of the Administrative Procedure Act (APA), constitutes a ``license,''
Why would EPA Lie about the program name?
Title 40: Protection of Environment
PART 501—STATE SLUDGE MANAGEMENT PROGRAM REGULATIONS
Subpart A—Purpose, Scope and General Program Requirements
Message: 2
Date: Fri, 25 Aug 2006 18:06:38 +0000
From: <[email protected]>
Subject: Sludge Watch ==> Michigan seeks changes to 'biosolids'
program - posting for public comment
To: [email protected]
Message-ID: <[email protected]>
Content-Type: text/plain; format=flowed
Sludgewatch Admin:
The public has the opportunity to comment on Michigan's proproposed
biosolids land application management program. Maybe it needs to be more
stringent...more public disclosure....more testing....
Submit your comments now....
.............................................................................................
Goal: Announce proposed changes to Michigan's biosolids management program.
Background: The State of Michigan has submitted a program modification
application to the EPA to administer and enforce a sewage sludge management
program. Specifically, the state is seeking approval of a biosolids
management program that addresses the land application of biosolids, the EPA
said.
According to the agency, Michigan is not seeking approval of the land
application of domestic septage, surface dis-posal of biosolids,
incineration of biosolids, or the landfilling of biosolids. As well, the
state program will not apply to Indian country, the EPA said.
Deadline: Comments on this notice must be submitted to the EPA by Sept. 18.
Contact: For more information, contact John Colletti of the EPA Region 5
office at (312) 886-6106 or via e-mail at [email protected].
...................................
http://www.epa.gov/fedrgstr/EPA-WATER/2006/August/Day-04/w12359.htm
Water Pollution Control; State Program Requirements; Program Modification
Application by Michigan To Administer a Partial Sewage Sludge Management
Program
[Federal Register: August 4, 2006 (Volume 71, Number 150)]
[Notices]
[Page 44291-44294]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04au06-65]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[FRL-8204-7]
Water Pollution Control; State Program Requirements; Program
Modification Application by Michigan To Administer a Partial Sewage
Sludge Management 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
Michigan has submitted a program modification application to EPA,
Region 5 to administer and enforce a sewage sludge (biosolids)
management program. Specifically, the state is seeking
[[Page 44292]]
approval of a biosolids management program which addresses the land
application of biosolids. Michigan is not seeking approval of the land
application of domestic septage, surface disposal of biosolids,
incineration of biosolids, or the landfilling of biosolids. Further,
the state is not seeking program approval for, and the state's
biosolids management program will not extend to ``Indian Country'' as
defined in 18 U.S.C. 1151 and applicable case law. According to the
state's application, this program would be administered by the Michigan
Department of Environmental Quality (MDEQ).
The application from Michigan is complete and is available for
inspection and copying. Public comments are requested and encouraged.
DATES: The public comment period on the state's request for approval to
administer the proposed Michigan NPDES biosolids management program
will be from the date of publication until September 18, 2006. Comments
postmarked after this date may not be considered.
ADDRESSES: Viewing/Obtaining Copies of Documents. You can view
Michigan's application for modification from 8 a.m. until 4 p.m.
(Eastern time zone) Monday through Friday, excluding holidays, at the
MDEQ, Constitution Hall, Water Bureau, 525 W. Allegan St., South
Tower--2nd Floor, Lansing, Michigan 48913, contact James Johnson (517)
241-8716; MDEQ Cadillac/Saginaw Bay Districts, 503 N. Euclid Ave., Ste
1, Bay City, Michigan 48706-2965, contact Mike Person (989) 686-8025;
MDEQ Grand Rapids/Kalamazoo Districts, 4460 44th St., SE., Ste. E,
Kentwood, Michigan 49512, contact David Schipper (616) 356-0276; MDEQ
Jackson District, 301 Louis Glick Highway, Jackson, Michigan 49201,
contact Greg Merricle (517) 780-7841; MDEQ S.E. Michigan District,
27700 Donald CT, Warren, Michigan 48092-2793, contact Todd Jaranowski
(586) 753-3798; and, MDEQ Upper Peninsula District, K.I. Sawyer
International Airport, 420 Fifth St., Gwinn, Michigan 49841, contact
Ben Thierry (906) 346-8528. A copy of Michigan's application for
modification is also available for viewing from 9 am to 4 pm, Monday
through Friday, excluding legal holidays, at EPA Region 5, 16th floor,
NPDES Programs Branch, 77 West Jackson Blvd., Chicago, IL 60604. Part
or all of the state's application may be copied, for a minimal cost per
page, at MDEQ's offices or EPA's office in Chicago.
Comments. Electronic comments are encouraged and should be
submitted to [email protected] Please send a copy to
[email protected]. Written comments may be sent to John Colletti
(WN-16J), EPA, Region 5, 77 West Jackson Blvd., Chicago, IL 60604.
Please send an additional copy to MDEQ, Attn: James Johnson,
Constitution Hall, Water Bureau, 525 W. Allegan St., South Tower--2nd
Floor, Lansing, Michigan 48913. Public comments may be sent in either
electronic or paper format. EPA requests that electronic comments
include the commentor's postal mailing address. No Confidential
Business Information (CBI) should be submitted through e-mail. Comments
and data will also be accepted on disks in Microsoft Word format. If
submitting comments in paper format, please submit the original and
three copies of your comments and enclosures. Commentors who want EPA
to acknowledge receipt of their comments should enclose a self-
addressed stamped envelope.
FOR FURTHER INFORMATION CONTACT: John Colletti at the above address by
phone at (312) 886-6106, or by e-mail at [email protected].
SUPPLEMENTARY INFORMATION: Throughout this document ``we'', ``us'', or
``our'' means EPA.
Table of Contents
I. Background
II. Biosolids and the State Biosolids Management Program
III. Indian Country
IV. Public Notice and Comment Procedures
V. Public Hearing Procedures
VI. EPA's Decision
VII. Other Federal Statutes
A. National Historic Preservation Act
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act
I. Background
Under section 402 of the Clean Water Act (CWA), 33 U.S.C. 1342, 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 EPA for authorization to
administer their own NPDES permit programs.
Section 405 of the Clean Water Act (CWA), 33 U.S.C. 1345, created
the Federal biosolids management program, requiring EPA to set
standards for the use and disposal of biosolids and requiring EPA to
include biosolids conditions in some of the NPDES permits which it
issues. The rules developed under section 405(d) are also self-
implementing, and the standards are enforceable whether or not a permit
has been issued. Section 405(c) of the CWA provides that a state may
submit an application to EPA for administering its own biosolids
program 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) and 405 of the
CWA or the EPA regulations implementing those sections. To obtain such
approval, the state must show, among other things, 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 biosolids management
program approval are listed in 40 CFR part 501.
The Michigan NPDES program was approved by EPA on October 17, 1973.
EPA received the biosolids management program application from Michigan
on April 4, 2002. Michigan's application for the biosolids management
program approval contains a letter from the Director of MDEQ requesting
program approval, an Attorney General's Statement, copies of pertinent
State statutes and regulations, a Program Description, and a Memorandum
of Agreement (MOA) to be executed by the Regional Administrator of EPA,
Region 5 and the Director of MDEQ. The state, based on comments from
EPA, submitted revisions to its application on April 21, 2005, and
March 17, 2006.
The Director's letters of March 28, 2002 and March 17, 2006,
requested that EPA approve the state's biosolids management program as
a modification of its NPDES program. On April 21, 2005, the Director
clarified that ``the MDEQ is not seeking approval of federal authority
of its Biosolids Application Program in Indian country at this time.''
The Attorney General's Statement includes citations to specific
statutes, administrative rules, and judicial decisions which
demonstrate adequate authority to carry out the state's biosolids
management program. State statutes and regulations cited in the
Attorney General's Statement are also included in the application. The
Attorney General's Statement states that the state is not seeking
approval of the biosolids program over ``Indian lands'' which it
defines separately from the term ``Indian Country.'' This statement has
been superseded by the state's letter of April 21, 2005 which states
that the application is not seeking approval in Indian country at this
time, but reserves the right to do so in the future. It is EPA's long-
standing position that the term ``Indian lands'' is synonymous
[[Page 44293]]
with the term ``Indian country''. Washington Dep't of Ecology v. U.S.
EPA, 752 F.2d 1465, 1467, n.1 (9th Cir. 1985). See 40 CFR 144.3 and 258.2.
The Program Description includes a description of the scope and
organizational structure of the biosolids 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 biosolids management program.
The proposed amendments to the MDEQ/EPA MOA include provisions for
permit administration, enforcement and compliance monitoring, and
annual reporting. The MOA was signed by the Director of MDEQ on May 17,
2006, 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 biosolids
management program administration.
II. Biosolids and the State Biosolids Management Program
Biosolids are the solids separated from liquids during treatment at
a municipal wastewater treatment plant and treated to stabilize and
reduce pathogens. EPA in 1993 adopted standards for management of
biosolids generated during the process of treating municipal
wastewater. 40 CFR part 503. The part 503 rules establish standards
under which biosolids may be land applied as a soil amendment, disposed
in a surface disposal site, or incinerated, and requirements for
compliance with 40 CFR part 258 if placed in a municipal landfill. The
standards, designed to protect public health and the environment,
include pollutant limits, pathogen reduction requirements, vector
attraction reduction requirements, and management practices specific to
the use or disposal option selected.
The Michigan biosolids management program imposes requirements on
wastewater treatment plants and biosolids appliers. It also provides
for the issuance of permits under certain conditions, enforcing the
standards as necessary, and providing guidance and technical assistance
to members of the regulated community. The program also includes a
state-specific feature requiring permittees to develop a Residuals
Management Program.
III. Indian Country
Michigan is not authorized to carry out its biosolids management
program in ``Indian Country,'' as defined in 18 U.S.C. 1151 and
applicable case law. Indian Country includes:
1. All lands within the limits of any Indian reservation under the
jurisdiction of the United States government, notwithstanding the
issuance of any patent, and, including rights-of-way running through
the reservation;
2. Any land held in trust by the U.S. for an Indian tribe; and
3. Any other land, whether on or off an Indian reservation that
qualifies as Indian Country.
Therefore, if EPA approves the state's biosolids management
program, it will have no effect in Indian Country. EPA retains the
authority to implement and administer the NPDES and biosolids program
in Indian Country.
IV. Public Notice and Comment 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 5 and postmarked within 45 days of
this document will be considered by EPA before it takes final action on
Michigan's request for program modification approval. All written
comments and questions regarding the biosolids management program
should be addressed to John Colletti at the above address. The public
is also encouraged to notify anyone who may be interested in this matter.
V. Public Hearing Procedures
At the time of this notice, a decision has not been made as to
whether a public hearing will be held on Michigan'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;
the request should be submitted to John Colletti 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 Michigan to provide statewide coverage and will be mailed
to interested persons at least 30 days prior to the hearing.
VI. EPA's Decision
EPA has determined that Michigan has submitted a complete
application. EPA sent a letter to the Director of the MDEQ on April 28,
2006, stating that the state's application to modify the Michigan NPDES
program to include a biosolids management program was substantially
complete, needing only to submit signed copies of the MOA. EPA received
the signed copies on May 25, 2006, and now has 90 days from that date
to approve or disapprove Michigan's biosolids management program unless
a public hearing is held. After the close of the public comment period,
EPA will consider and respond to all significant comments received
before taking final action on Michigan's request for biosolids
management program approval. 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 Michigan biosolids
management program is approved, EPA will so notify the state. Notice
will be published in the Federal Register and, as of the date of
program approval, EPA will no longer serve as the primary program and
enforcement authority for land application of biosolids within
Michigan. EPA, within Michigan, will remain the authority for biosolids
use and disposal in Indian Country, for the incineration of biosolids,
for the surface disposal of biosolids, for the landfilling of
biosolids, and for the land application of domestic septage. The
state's program will operate in lieu of the EPA-administered program.
However, EPA will retain the right, among other things, to object to
NPDES permits proposed by Michigan and to take enforcement actions for
violations, as allowed by the CWA. If EPA disapproves Michigan's
biosolids management program, EPA will notify Michigan of the reasons
for disapproval and of any revisions or modifications to the state
program that are necessary to obtain approval.
VII. Other Federal Statutes
A. 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),
agencies consult with the
[[Page 44294]]
appropriate State Historic Preservation Officer (SHPO) on federal
undertakings that have the potential to affect historic properties
listed or eligible for listing in the National Register of Historic
Places. EPA, Region 5 is currently in discussions with the Michigan
SHPO regarding its determination that approval of the state biosolids
management program would have no adverse effect on historic properties
within the State of Michigan.
B. 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 Clean Water
Act (CWA) program submission to constitute an adjudication because an
``approval,'' within the meaning of the Administrative Procedure Act
(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 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 CWA program approval were a rule
subject to the RFA, the Agency would certify that approval of the State
proposed CWA program would not have a significant economic impact on a
substantial number of small entities. EPA's action to approve a CWA
program merely recognizes that the necessary elements of the 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 Michigan biosolids management program, even if a rule, would
not have significant economic impact on a substantial number of small
entities.
C. 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 EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective 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. Michigan's request for approval of its biosolids management
program is voluntary and imposes no Federal mandate within the meaning
of the Act. Rather, by having its biosolids 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 biosolids 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 biosolids 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
biosolids management facilities that will become subject to the
requirements of an approved state biosolids management program.
However, small governments that own and/or operate biosolids 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 biosolids management program and any
revisions to that program, these same small governments will be able to
own and operate their biosolids 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.
List of Subjects
Environmental protection, Administrative practice and procedures,
Indian Country, Intergovernmental relations, Waste treatment and
disposal, Water pollution control.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: July 5, 2006.
Norman Niedergang,
Acting Regional Administrator, Region 5.
[FR Doc. E6-12359 Filed 8-3-06; 8:45 am]
BILLING CODE 6560-50-P
------------------------------
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MICHIGAN REQUEST FOR APPROVAL FOR ITS PROGRAM OF DISCHARGES OF POLLUTANTS (sludge) FROM A
POINT SOURCE -- TO A NON-POINT SOURCE (agricultural land) -- INTO THE WATERS OF THE UNITED STATES.
In effect, a license for the "open dumping" of sludge -- an act prohibited by the Resource Conservation and
Recovery Act (RCRA)