[Federal Register Volume 61, Number 169 (Thursday, August 29, 1996)]
[Notices]
[Pages 45420-45426]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21944]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5601-9]
State Program Requirements; Application To Administer the
National Pollutant Discharge Elimination System (NPDES) Program;
Oklahoma
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed approval of the Oklahoma Pollutant Discharge
Elimination System.
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SUMMARY: The State of Oklahoma has submitted a request for approval of
the Oklahoma Pollutant Discharge Elimination System (OPDES) Program
pursuant to Section 402 of the Clean Water Act. If EPA approves the
OPDES program, the Oklahoma Department of Environmental Quality (ODEQ)
will administer that program in lieu of the National Pollutant
Discharge Elimination System (NPDES) program now administered by EPA in
Oklahoma. Today, EPA proposes to approve the State's request and
provides notice of a public hearing and comment period on that
proposal. EPA will either approve or disapprove the State's request
after considering all comments it receives.
DATES: EPA Region 6 will hold a public hearing on September 30, 1996
beginning at 7:00 p.m. for submission of verbal or written comments on
EPA's program approval proposal. A public discussion for questions and
answers will be held prior to the hearing from 3:00 p.m. until 5:00
p.m. To ensure issues brought up during the meeting from 3:00 to 5:00
are considered in EPA's decision, they should be made in writing to
EPA, or on record during the public hearing later that evening. EPA
Region 6 will continue to accept written comments through October 21,
1996 at its office in Dallas, Texas. Copies of such written comments
should also be provided to ODEQ.
ADDRESSES: The September 30, 1996, public hearing will be held at the
Tom Sneed Career Development Center Auditorium, Rose State College, I-
40 and Hudiburg Drive at Exit 156B, Midwest City, Oklahoma. Specific
directions will be posted at the ODEQ headquarters building located at
1000 N.E. 10th, Oklahoma City, Oklahoma.
Written comments must be submitted to: Ms. Ellen Caldwell (6WQ-O),
Water Quality Protection Division, EPA Region 6, 1445 Ross Avenue,
Dallas, Texas 75202.
A copy of each comment should be submitted to: Norma Aldridge,
Department of Environmental Quality,
[[Page 45421]]
Water Quality Division, 1000 N.E. 10th Street, Oklahoma City, Oklahoma
73117-1212.
Copies of documents Oklahoma has submitted in support of its
program approval request may be reviewed during normal business hours,
Monday through Friday, excluding holidays, at:
EPA Region 6, 12th Floor Library, 1446 Ross Avenue, Dallas, Texas
75202, (214) 665-7513
ODEQ Headquarters, Department of Environmental Quality, Water Quality
Division, 1000 N.E. 10th Street, Oklahoma City, Oklahoma 73117-1212.
The documents are also available to the public at the following
libraries:
1. Tulsa City/County Library, 400 Civic Center, Tulsa, Oklahoma 74103
2. Woodward Public Library, 1500 N. Main, Woodward, Oklahoma 73801
3. McAlester Public Library, 401 N. 2nd Street, McAlester, Oklahoma
74501
4. Lawton Public Library, 110 S.W. 4th Street, Lawton, Oklahoma 73501.
FOR FURTHER INFORMATION CONTACT: Ms. Ellen Caldwell at the EPA address
listed above or by calling (214) 665-7513 or Norma Aldridge at the ODEQ
address listed above or by calling (405) 271-5205 ext 134.
Part or all of the State's submission (which comprises
approximately 2391 pages) may be copied at the ODEQ office in Oklahoma
City, or EPA office in Dallas, at a minimal cost per page. A paper copy
of the entire submission may be obtained from the ODEQ office in
Oklahoma City for a $358.65 fee (The cost of the principal documents,
i.e., the Attorney General's Statement, Memorandum of Agreement,
Program Description, and the Enforcement Management System all without
their associated appendices is $163.35). An electronic copy of the
documents stored on computer disk will be provided at no cost to
interested parties which supply a disk to ODEQ for that purpose. The
disk must be a new, 3.5'' high density/double sided microdisk. The
documents will be copied to the disk in WordPerfect 6.0.
SUPPLEMENTARY INFORMATION: Section 402 of the Clean Water Act (Act)
created the NPDES program under which EPA may issue permits for the
point source discharge of pollutants to waters of the United States
under conditions required by the Act. Section 402 also provides that
EPA may authorize a State to administer an equivalent state program
upon a showing the State has authority and a program sufficient to meet
the Act's requirements.
The basic requirements for state program approval are listed in 40
CFR Part 123. EPA Region 6 considers the documents submitted by the
State of Oklahoma complete at the time of this notice and believes they
comply with the regulations found at 40 CFR 123. It thus proposes to
approve the OPDES program as described by the Oklahoma Department of
Environmental Quality. EPA will consider final approval after all
public comments have been considered.
On June 10, 1996, the Governor of Oklahoma requested NPDES partial
program approval and submitted a program description (including
funding, personnel requirements and organization, and enforcement
procedures), an Attorney General's statement, copies of applicable
State statutes and regulations, and a Memorandum of Agreement (MOA) to
be executed by the Regional Administrator of EPA Region 6 and the
Executive Director of ODEQ. As a result of discussions between EPA and
ODEQ staff, changes and additions have been made to some of those
documents to include regulatory and statutory corrections in the
program. The additional information was received by EPA on August 14,
1996, and a letter of completeness was sent to the Executive Director
of ODEQ on August 22, 1996.
EPA's Regional Administrator is required to approve the submitted
program within 90 days of submission of the complete information unless
it does not meet the requirements of section 402(b) of the Act and EPA
regulations. 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. After close of the
comment period, EPA's Regional Administrator will decide to approve or
disapprove the OPDES program for implementation in lieu of the federal
NPDES program.
EPA's final decision to approve or disapprove the OPDES program
will be based on the requirements of section 402 of the CWA and 40 CFR
Part 123. If she approves the Oklahoma partial program, the Regional
Administrator will so notify the State. Notice will be published in the
Federal Register and, as of the date of program approval, EPA will
suspend issuance of NPDES permits in Oklahoma [except for those
discharges which are not under the jurisdiction of ODEQ, see Scope and
Summary of the OPDES Permitting Program below]. The State's OPDES
program will implement federal law and operate in lieu of the EPA-
administered NPDES program for those discharges for which ODEQ has
authority. EPA will, however, retain the right to object to OPDES
permits proposed by ODEQ, and if the objections are not resolved, issue
the permit itself. If EPA's Regional Administrator disapproves the
OPDES program, she will notify ODEQ of the reasons for disapproval and
of any revisions or modification to the program which are necessary to
obtain approval.
PUBLIC HEARING PROCEDURES: The following procedures will be used at the
September 30, 1996 public hearing:
1. The Presiding Officer shall conduct the hearing in a manner
which will allow all interested persons wishing to make oral statements
an opportunity to do so; however, the Presiding Officer may inform
attendees of any time limits during the opening statement of the
hearings.
2. Any person may submit written statements or documents for the
record.
3. The Presiding Officer may, in his discretion, exclude oral
testimony if such testimony is overly repetitious of previous testimony
or is not relevant to the decision to approve or require revision of
the submitted State program.
4. The transcript taken at the hearing, together with copies of all
submitted statements and documents, shall become a part of the record
submitted to the Regional Administrator.
5. The hearing record shall be left open until the deadline for
receipt of comments specified at the beginning of this Notice to allow
any person time to submit additional written statement or to present
views or evidence tending to rebut testimony presented at the public
hearing.
Hearing statements may be oral or written. Written copies of oral
statements are urged for accuracy of the record and for use of the
Hearing Panel and other interested persons. Statements should summarize
any extensive written materials. All comments received by EPA Region 6
by the deadline for receipt of comments, or presented at the public
hearing, will be considered by EPA before taking final action on the
Oklahoma request for NPDES program approval.
Scope and Summary of the Oklahoma Pollution Discharge Elimination
System (OPDES) Permitting Program
A. Scope
1. Partial Program: Oklahoma's OPDES program is a partial program
which conforms to the requirements of section 402(n) of the Clean Water
Act. The program application submitted by ODEQ applies to all
discharges covered
[[Page 45422]]
by the authority of that agency. This includes most discharges of
pollutants subject to the federal NPDES program (e.g. municipal
wastewater discharges, pretreatment, and most industrial point source
discharges, and point source discharges from federal facilities),
including the disposal of sewage sludge (in accordance with Section 405
of the Act and 40 C.F.R. Part 503). ODEQ does not have regulatory
authority over the following classes of facilities or discharges in the
State of Oklahoma:
(a) Agricultural industries including concentrated animal feeding
operations and silviculture. The Oklahoma Department of Agriculture is
the state authority for point and nonpoint source discharges associated
with agricultural production, services, silviculture, feed yards,
livestock markets and animal wastes. The Department of Agriculture has
not yet applied to EPA for authorization of their program, therefore,
EPA will retain NPDES authority over these facilities and their
discharges.
(b) Oil and Gas exploration and production related industries and
pipeline operations outside the boundries of facilities regulated by
ODEQ. The Oklahoma Corporation Commission is the state authority
regulating the oil and gas exploration and production related
industries and their associated discharges. The Corporation Commission
has not yet applied to EPA for authorization of their state program,
therefore, EPA will retain NPDES authority over these industries and
their discharges to surface waters of the state.
(c) Discharges in Indian Country. The State of Oklahoma does not
seek jurisdiction over Indian Country. EPA will retain NPDES authority
to regulate discharges in Indian Country (as defined in 18 W.S.C.
1151). Although State regulation 252:605-1-3(c) seems to assert that
the OPDES program has the authority to regulate discharges on ``Indian
Lands,'' it is contrary to the intent of the State as described in the
EPA/ODEQ MOA and the Oklahoma Attorney General's Statement. The State
of Oklahoma has undertaken steps to revise the regulation clarifying
ODEQ does not seek to issue authorized OPDES permits to discharges in
Indian Country. EPA and ODEQ will work together with tribal authorities
to resolve questions of permitting authority for individual discharges.
Although EPA would be the issuing authority for permits in Indian
Country, it is likely that Region 6 would work with ODEQ and the
appropriate tribes in the development of these permits to insure that
both tribal and state waters are protected in a way consistent with the
requirements of the CWA.
(d) Discharges of radioactive materials regulated by the federal
government (i.e. those radioactive materials covered by the Atomic
Energy Act of 1954, as amended (42 U.S.C. 2011 et seq.)). The State's
definition of ``pollutant'' does not exclude by reference radioactive
materials regulated by other federal authorities. EPA does not have the
authority to authorize the OPDES program to regulate radioactive wastes
governed by the Atomic Energy Act. The regulatory authority for
radioactive materials will remain under the jurisdiction of the U.S.
Department of Energy and the Nuclear Regulatory Commission. Some
industrial discharges which contain very low level radioactive wastes
(e.g. manufacturers of watches may discharge trace amounts of radium,
and hospital wastes sometimes contain iodine isotopes) which are not
included in the Atomic Energy Act and are thus regulated by EPA; upon
authorization of the OPDES program, the authority to regulate those
discharges will become the responsibility of ODEQ.
(e) Oklahoma Ordinance Works Authority (OOWA). EPA will retain
enforcement authority for OOWA (NPDES permit No. OK0034568), located in
Pryor, Oklahoma, and all industries served by this facility. ODEQ is
legally responsible for implementing the pretreatment program at OOWA.
2. Phased Program Authority: The State of Oklahoma, to ensure that
the Oklahoma general permitting program is consistent with the
requirements of 40 CFR 123.25(c), is revising its statutes and
regulations to provide the Executive Director of the Oklahoma
Department of Environmental Quality with the full authority to issue
general permits under the OPDES system. Until the state completes this
transfer of authority, EPA will retain full permitting and enforcement
authority for those discharges which are covered, or proposed to be
covered by EPA issued general permits. This will prevent the state from
becoming overburdened with the permitting of these facilities via
individual permits. Once the state has completed its regulatory and
statutory changes to ensure their general permitting authority complies
with 40 CFR 123.25(c), EPA will turn over all authority for these
discharges to ODEQ. EPA will also transfer its general permits to ODEQ
for administration. This phased authority will be transferred to the
state no later than three years after authorization of the program.
a. EPA will be temporarily retaining NPDES authority for:
i. All existing discharges of storm water associated with
industrial or construction activity (40 CFR 122.26(b)(14)), including
allowable non-storm water, authorized to discharge under an NPDES storm
water general permit as of the date of program assumption. The storm
water general permits affected are: Baseline construction storm water
general permit (57 FR 41209), NPDES permit numbers OKR10*###; Baseline
non-construction storm water general permit (57 FR 41297), NPDES permit
numbers OKR00*###; and Multi-sector storm water general permit (60 FR
51108), NPDES permit numbers OKR05*###. (For an individual facility's
permit number, the * is a letter and the #'s are numbers--e.g.
OKR00Z999).
ii. New discharges of storm water associated with industrial or
construction activity, including allowable non-storm water, eligible
for coverage under one of the NPDES storm water general permits listed
above, excluding new discharges subject to a new source performance
standard. ODEQ will have authority for new discharges subject to a new
source performance standard and these discharges will require an OPDES
permit. Since the excluded facilities will be applying for a State-
issued permit, the new source review requirements of the National
Environmental Policy Act (NEPA) will not apply. [NOTE: Phased authority
does not apply to discharges from municipal separate storm sewers
systems (MS4s, e.g., Oklahoma City and Tulsa); individual storm water
permits or outfalls in waste water permits; and storm water discharges
designated by the State in accordance with 40 CFR 123.26(g)(1)(I). The
state will have authority over these discharges immediately upon
authorization.]
iii. All existing and new discharges resulting from implementing
corrective action plans, as required by 40 CFR 280, for cleanup of
groundwater contaminated by releases from Petroleum Underground Storage
Tank Systems (UST). A Petroleum UST System is defined in 40 CFR 280 as
an underground storage tank system that contains petroleum or a mixture
of petroleum with de minimis quantities of other regulated substances.
Such systems include those containing motor fuels, jet fuels,
distillate fuel oils, residual fuel oils, lubricants, petroleum
solvents, and used oils.
iv. Discharges from Petroleum Bulk Storage Tanks (PST). To EPA's
and ODEQ's knowledge, all discharges
[[Page 45423]]
authorized by EPA's PST general permit are regulated by the Oklahoma
Corporation Commission. Neither EPA nor ODEQ are aware of any discharge
points covered under EPA's PST general permit which are also located at
facilities regulated by ODEQ. However, if it is determined that a
permittee regulated by ODEQ has coverage under this EPA general permit,
those discharges would be issued individual permits by ODEQ when the
facility permit was modified, issued or reissued. So as not to leave
the discharges from the PST without NPDES authorization, EPA and ODEQ
would transfer authority over these discharges in the manner described
in A.2. b. (below) at the time ODEQ public noticed the permitting
action.
A list of existing permittees under the general permits and thus
remaining under EPA permitting authority is included as part of the
public record and available for review. Facilities eligible for but not
currently covered by one of these general permits may continue to apply
to EPA for coverage. [Note: Oklahoma will continue to provide state-
only permits for those dischargers which are to be phased over to ODEQ,
and which need state authorization to discharge.]
b. Case-by-case transfers of NPDES authority for individual storm
water, UST, and certain PST dischargers. From time to time, it may be
desirable from an environmental or administrative standpoint to
transfer authority, for an individual facility with EPA NPDES general
permit coverage, prior to the time the State has received authority to
issue general permits. Case-by-case transfers of NPDES authority for
individual storm water, UST, and certain PST dischargers will be made
using the following procedures:
i. ODEQ may request early transfer of NPDES authority over an
individual facility or a class of storm water dischargers at any time.
All requests will be in writing and will include a brief rationale.
ii. For those categories of industrial waste water and storm water
which EPA has retained temporary authority, and may not be eligible for
coverage under an EPA general permit, the permittee may petition ODEQ
to request early transfer of NPDES authority so the facility discharges
may be covered by an individual OPDES permit. The applicant must send a
written request for transfer of authority to ODEQ. If the applicant's
request is approved, ODEQ will request transfer of authority as
specified above.
iii. If ODEQ and EPA agree to early transfer of NPDES authority for
a facility, the State will include outfalls for the affected discharges
in a draft OPDES permit and the public notice of the draft permit will
concurrently notice the transfer of authority for the facility's
discharges to ODEQ.
c. Final transfer of complete authority over EPA general permits.
Ultimately, transfer of complete NPDES authority for storm water, UST,
and certain PST discharges will be made using the following procedures:
i. Within three years from the date of program assumption, the
State will make the necessary changes to State statutes in order to
qualify for general permitting authority.
ii. Within 90 days of the effective date of the new statutes, the
State will submit a supplemental Attorney General's statement, along
with a copy of the relevant statutes, certifying that the Executive
Director has the authority to issue general permits.
iii. If EPA concurs with the Attorney General's statement, the
Agency will publish notice of the transfer of authority for all
remaining storm water, UST, and specific PST discharges to ODEQ and
send a copy to the appropriate mailing list.
iv. Once the Executive Director of ODEQ assumes authority in
accordance with a promulgated final rule to issue general permits, the
State will become the permitting authority (subject to EPA oversight)
for all discharges of storm water associated with industrial and
construction activity, UST remediation discharges, and PST discharges
which fall under ODEQ's authority. The EPA storm water general permits
and any effective general permits for UST remediation discharges will
then be transferred to ODEQ for administration. Within 30 days of the
transfer of authority, EPA will provide ODEQ with a list of all
facilities authorized to discharge under these general permits.
3. Transfer of NPDES Authority and Pending Actions: Upon approval
of the Oklahoma program, authority for all NPDES Permit and Enforcement
activities (within the scope of ODEQ's authority) will be transferred
to the State with the following exceptions: a) Permits for facilities
whose permits are proposed but not final. The permit authority will be
transferred to the state as the permits are finalized. b) Permits for
which there is an unresolved evidentiary hearing request. Once a
hearing has been denied or is held and the issue resolved, the permit
will be transferred to the state. c) Enforcement authority for those
facilities which have any outstanding compliance issues. EPA will
retain jurisdiction of these facilities until resolution of these
issues is accomplished in cooperation with the State. Files retained by
EPA for the reasons given above will be transferred to the state as the
actions are finalized. Facilities will be notified of this retained
jurisdiction and again when the file is transferred to the State.
B. Summary of the Application Documents
The OPDES program is fully described in documents the State has
submitted in accordance with 40 CFR 123.21, i.e., a Memorandum of
Agreement (MOA) for execution by ODEQ and EPA; a Program Description,
including an Enforcement Management System, outlining the procedures,
personnel and protocols that will be relied on to run the state's
permitting and enforcement programs; a Statement signed by the Attorney
General that describes the legal authority which the state has adopted
to administer a program equivalent to the federal NPDES program; and
several agreements under which ODEQ will coordinate with the State
Historic Preservation Officer and the U.S. Fish and Wildlife Service
for the protection of antiquities and endangered species. The content
of those documents is summarized below.
1. The EPA/ODEQ MOA: The requirements for MOAs are found in 40 CFR
123.24. A Memorandum of Agreement is a document signed by each agency,
committing them to specific responsibilities relevant to the
administration and enforcement of the state's regulatory program. A MOA
specifies these responsibilities and provides structure for the State's
program management and EPA's program oversight.
The MOA submitted by the State of Oklahoma has been signed by Mark
Coleman, Executive Director of the Department of Environmental Quality.
The Regional Administrator of U.S. EPA Region 6 will sign the document
after the program has been determined approvable and all comments
received during the comment period (including comments received at the
public hearing) have been considered. The MOA submitted by ODEQ
includes the following items:
Section I--Introduction: This section contains the statement of
scope of the NPDES program (pretreatment, storm water, sewage sludge
disposal programs) and contains general statements describing the
purpose of the MOA.
Section II--General Responsibilities: Describes, in general terms,
the relative responsibilities regarding administration of the State
program and EPA regarding oversight of the state program.
[[Page 45424]]
Section III--Program Responsibilities: Lists the responsibilities
of ODEQ and EPA in maintaining an effective program. Also outlines the
procedures for phased authority over general permit discharges, and
gives timing for the transition.
Section IV--Permit Review and Issuance: Describes all agreements on
the review and issuance of OPDES permits. It covers ODEQ's
responsibilities to issue permits, the transfer of EPA files to the
State, and the State's application review and permit development
process. Included are such things as procedures for permit modification
or reissuance, and EPA's review of OPDES drafted individual and general
permits. This section includes the State's commitment for responding to
public concerns and providing public participation in connection with
public hearings, evidentiary hearings, and administrative and judicial
enforcement actions.
Section V--Enforcement: Describes summary agreements between EPA
and ODEQ that provide EPA with oversight of the OPDES enforcement
program. These include those commitments on ODEQ's compliance
monitoring, reviews, pretreatment audits, and inspections. ODEQ agrees
to take penalty actions in accordance with the spirit of the EPA
Penalty Policy.
Section VI--Reporting and Transmittal of Information: This section
describes how reports and requests for information will be handled; and
how information is transferred between the two agencies.
Section VII--Program Review: Explains how EPA must review the OPDES
program.
Section VIII--Computation of Time: This section explains how time
is computed with relation to the effective date of the MOA and non-
business days.
Section IX--Modification to this MOA: Describes how the MOA can be
modified by EPA and ODEQ.
Section X--Public Access to Information: Provides that all
information (except that which is legally determined to be
confidential) must be available to the public by both ODEQ and EPA.
Section XI--Independent EPA Powers: Explains that the MOA does not
limit EPA's authority to take action under the Clean Water Act.
Section XII--Incorporation By Reference: Allows DEQ to adopt
federal standards by reference.
Section XIII--MOA Effective: The MOA becomes effective when the EPA
Regional Administrator signs the document.
2. Program Description: A program description submitted by a state
seeking program approval must meet the minimum requirements of 40 CFR
123.22. It must provide a narrative description of the scope,
structure, coverage and processes of the state program; a description
of the organization, staffing and position descriptions for the lead
state agency; and itemized costs and funding sources for the program.
It must describe all applicable state procedures (including
administrative procedures for the issuance of permits and
administrative or judicial procedures for their review) and include
copies of forms used in the program. It must further contain a complete
description of the State's compliance and enforcement tracking program.
The program description submitted by ODEQ includes the following items:
Chapter 1--Scope and Authority of the DEQ Program: This chapter
describes the authority (statutes and rules) for the state program and
the scope. In particular, it provides a description of the authority
over sewage sludge, pretreatment and storm water programs.
Chapter 2--Organization, Structure and Responsibilities: This
chapter gives an overview of the Water Quality Division, other
Divisions within DEQ; and OPDES staff job descriptions.
Chapter 3--Cost Estimates and Funding of the Oklahoma Delegations
Program: This chapter gives a budget summary on programs's projected
finances and funding sources for the program.
Chapter 4--Permitting Procedures: Describes how ODEQ staff will
develop effluent limitations, the permitting process, and the process
for determining Total Maximum Daily Load of a surface water.
Chapter 5--Public Participation: This chapter describes the
procedures governing public involvement in ODEQ decision making. This
includes rulemaking, public forums and meetings, the permitting
process, development and updating the Continuing Planning Process, and
other public participation opportunities.
Chapter 6--Source Inventory: Describes the source inventory for
sludge, unpermitted discharges, general permits and pretreatment
programs that will be entered into the Permits Compliance System (PCS--
the computer tracking system for NPDES permits).
Chapter 7--Compliance Monitoring: Gives a brief overview of
compliance review activities for inspections, Discharge Monitoring
Reports and other required reports to be submitted by the permittee.
Chapter 8--PCS and Program Reporting: Describes the Permits
Compliance System and the types of data tracked by it. This chapter
also describes how this data is updated.
Chapter 9--Flow of Information and Records: Details the documents
to be processed, the timelines for these processes, types of
information received by ODEQ, permit file contents, and describes how
information is disseminated.
Chapter 10--Enforcement and Compliance: This chapter gives the
legal authority for ODEQ enforcement actions, outlines ODEQ policies
related to compliance and enforcement and provides a description of
state enforcement actions.
Chapter 11--Pretreatment: This chapter gives the authority for ODEQ
pretreatment program; and the components of the program such as, the
establishment of limits for indirect users, fundamentally different
factors, categorical determination requests, reporting requirements,
inspections and enforcement.
Chapter 12--Storm Water: describes the storm water program, its
implementation in Oklahoma, and the general permits which regulate many
of the storm water dischargers. The authority to regulate dischargers
covered by general permits will be phased over to the state within
three years.
Chapter 13--Sewage Sludge: Gives a brief description of sewage
sludge program, its history, and statutory framework. It describes
sludge permits and reports required.
Chapter 14--Toxics Control: Describes the permit conditions
relating to the control of toxicity. This includes biomonitoring
requirements and numerical limits for toxics in permits.
Chapter 15--Program Description EPA Oversight: Explains the
mechanism EPA will use to oversee the OPDES program and the authority
for EPA oversight.
3. Enforcement Management System (EMS): States seeking
authorization of their permitting and enforcement program under NPDES
have the option of adopting EPA's enforcement policies, procedures, and
guidance; or provide in their program package a complete description of
their enforcement authority and compliance evaluation program (40 CFR
123.26 and 123.27). Oklahoma developed its own enforcement management
system. An EMS outlines the ways the State systematically and
efficiently identifies instances of noncompliance and
[[Page 45425]]
provides timely and appropriate enforcement actions to achieve the
final objective of full compliance by the permittee with the Clean
Water Act. An EPA memo dated October 2, 1989, titled ``Final Version of
the Revised Enforcement Management System,'' describes seven basic
principles that are common to an effective EMS:
--Maintain a source inventory that is complete and accurate;
--Handle and assess the flow of information available in a systematic
and timely basis;
--Accomplish a pre-enforcement screening by reviewing the flow of
information as soon as possible after it is received;
--Perform a more formal enforcement evaluation where appropriate, using
systematic evaluation screening criteria;
--Institute a formal enforcement action and follow-up whenever
necessary;
--Initiate field investigations based on a systematic plan; and,
--Use internal management controls to provide adequate enforcement
information to all levels of organization.
The ODEQ's Enforcement Management System (EMS) is a written outline
or guide which discusses the procedures that will be followed to ensure
that both federal and state regulatory requirements and goals are
accomplished in a timely and appropriate manner.
The inspection and enforcement functions of the Oklahoma Department
of Environmental Quality (ODEQ) reside in the Water Quality Division's
Field Inspection and Compliance Section and the Water Quality Program
Management Section headquartered in Oklahoma City. The Field Inspection
and Compliance Section is responsible for inspecting all permitted and
unpermitted facilities which have or are believed to have a surface
water discharge and is primarily responsible for the investigation and
resolution of all citizen complaints involving waters of the State. The
State Environmental Laboratory and the local ODEQ representatives from
the Environmental Complaints and Local Services Division (located
within the counties of Oklahoma) assist in preliminary inspection and
investigation of complaints.
Penalties. The ODEQ has adopted EPA's civil penalty policy to
ensure the consistent assessment and collection of administrative
penalties in their state. The amount of penalty sought by ODEQ for
permit or CWA violations will be consistent with Clean Water Act
Penalty Policy.
Enforcement. In contrast to the compliance orders EPA issues under
CWA Sec. 309(a)(3), ODEQ's Compliance Orders (COs) are subject to
appeal.
Staffing. ODEQ has committed to establish full program staffing by
FY 99. This will require the state to hire additional personnel over a
3 year period; 10 the 1st year, 8 the 2nd year and 2 the 3rd year.
4. Attorney General's Statement: An Attorney General's Statement is
required and described in regulations found at 40 CFR 123.23. The State
Attorney General must certify that the State has lawfully adopted
statutes and regulations which provide the State agency with the legal
authority to administer a permitting program in compliance with 40 CFR
Part 123. The Attorney General's Statement from Oklahoma describes and
cites state legal authority which provide adequate legal authority to
administer the program; and certifies that the State does indeed have
the legal authority to administer the OPDES program in accordance with
the regulations in 40 CFR 123.
Comments on the Described Program
The program submitted by the State of Oklahoma has been determined
by EPA to be complete in accordance with the regulations found at 40
CFR 123. EPA and ODEQ want to encourage public participation in this
authorization process so that the citizens of Oklahoma will understand
the program in their state. Therefore, EPA requests that the public
review the program that ODEQ has submitted and provide any comments
they feel are appropriate. EPA and the State want the public to be able
to effectively coordinate with ODEQ on OPDES permitting and enforcement
actions. EPA will consider all comments on the OPDES program and/or its
authorization in its decision.
Other Federal Statutes
A. National Historic Preservation Act
Section 106 of the National Historic Preservation Act (NHPA)
requires that all federal agencies must consult with the State Historic
Preservation Officer (SHPO) and the Advisory Council on Historic
Preservation (ACHP) on all federal undertakings which may affect
historic properties or sites listed or eligible for listing in the
National Register of Historic Places. Regulations outlining the
requirements of a Section 106 consultation on a federal undertaking are
found at 36 CFR Part 800. Approval of the State NPDES permitting
program under section 402 of the Clean Water Act is a federal
undertaking subject to this requirement, but the State's subsequent
issuance of OPDES permits may not be. EPA has thus consulted in
accordance with Section 106 of the NHPA to assure equivalent protection
of eligible properties will be provided in connection with State permit
actions. In that consultation, EPA, the SHPO and ODEQ outlined
procedures by which, following approval of the state's program, ODEQ
and the SHPO would confer on permit actions likely to affect historic
properties. These processes are reflected in a memorandum of
understanding signed by EPA and the SHPO on EPA's oversight role and
objection procedures on permits when the two state agencies can not
agree on the protection of historic properties. The EPA/ODEQ MOA
includes conditions for EPA and ODEQ to follow to ensure that the
requirements of the consultation with the SHPO are met. These
consultation documents are available with the program package for
public review and comment.
B. Endangered Species Act
Section 7 of the Endangered Species Act (ESA) requires that all
federal agencies consult on federal actions which may affect federally
listed species to insure they are unlikely to jeopardize the continued
existence of those species or adversely modify their critical habitat.
Regulations controlling consultation under ESA Section 7 are codified
at 50 CFR Part 402. The approval of the State permitting program under
section 402 of the Clean Water Act is a federal action subject to this
requirement, but the State's subsequent OPDES permit actions are not.
EPA has completed informal consultation with the U.S. Fish and Wildlife
Service (FWS or the Service). In the course of consultation, EPA, the
Service, and ODEQ have outlined procedures by which ODEQ and FWS, will
confer on permits which are likely to affect federally listed species.
These processes are reflected in a Memorandum of Understanding between
the State and FWS. In addition, a consultation agreement has been
reached between EPA and FWS on EPA's oversight role and objection
procedures when ODEQ and FWS cannot agree on the protection of species
in an individual State permit action. These conditions are reflected in
the EPA/ODEQ MOA. These documents are available with the program
package for public review and comment.
C. Small Business Regulatory Enforcement Fairness Act
Under section 801(a)(1)(A) of the Administrative Procedures Act
(APA) as
[[Page 45426]]
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, EPA submitted a report containing this rule and other required
information to the U.S. Senate, the U.S. House of Representatives and
the Comptroller General of the General Accounting Office prior to
publication of the rule in today's Federal Register. This rule is not a
``major rule'' as defined by section 804(2) of the APA as amended.
D. Regulatory Flexibility Act
After review of the facts presented in this document, I hereby
certify, pursuant to the provisions of 5 U.S.C. 605(b), that this
proposal will not have a significant impact on a substantial number of
small entities. The approval of the Oklahoma NPDES permit program would
merely transfer responsibilities for administration of the NPDES permit
program from Federal to State government.
I hereby propose to authorize the OPDES program in accordance with
40 CFR part 123.
Dated: August 22, 1996.
Jane N. Saginaw,
Regional Administrator.
[FR Doc. 96-21944 Filed 8-28-96; 8:45 am]
BILLING CODE 6560-50-P