State Program Requirements; Approval of Application by Maine To Administer the National Pollutant Discharge Elimination System (NPDES) Program; Maine

Note: EPA no longer updates this information, but it may be useful as a reference or resource.
 [Federal Register: February 28, 2001 (Volume 66, Number 40)]
[Notices]               
[Page 12791-12795]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28fe01-61]                         

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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.

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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

[[Page 12792]]

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

[[Page 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

[[Page 12794]]

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 Magnuson-Stevens 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

[[Page 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]
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