[Federal Register: August 4, 2003 (Volume 68, Number 149)]
[Notices]
[Page 45817-45819]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04au03-38]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-7538-8]
Final Reissuance of the National Pollutant Discharge Elimination
System (NPDES) Storm Water Construction General Permit for the
Commonwealth of Massachusetts and Indian Country in Massachusetts
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of Final Reissuance of NPDES Storm Water Construction
General Permits.
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SUMMARY: This action provides notice of the reissuance of the Final
National Pollutant Discharge Elimination System (NPDES) Storm Water
Construction General Permit for the Commonwealth of Massachusetts and
Indian country within the Commonwealth of Massachusetts.
DATES: Today's action shall be effective August 4, 2003. The permit
will expire five years from the effective date.
ADDRESSES: The final permit is based on an administrative record. The
administrative record for the final construction general permit is
available for inspection and copying at the Water Docket, located at
the EPA Docket Center in the basement of the EPA West
[[Page 45818]]
Building, Room B-102, at 1301 Constitution Avenue, NW., Washington, DC.
FOR FURTHER INFORMATION CONTACT: Additional information concerning the
final permit, the permit's Notice of Intent (NOI), or the permit's
Notice of Termination (NOT) is available on EPA's Web site at http://www.epa.gov/npdes/stormwater/cgp.cfm
or from Thelma Murphy, Office of
Ecosystem Protection, Environmental Protection Agency, 1 Congress
Street, Suite 1100, Boston, MA 02114-2023; telephone: 617-918-1615; e-
mail: murphy.thelma@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
On July 1, 2003 (68 FR 39087), EPA published final NPDES
construction general permits for large construction activity in Regions
1, 2, 3, 6, 7, 8, 9 and 10. Also on July 1, 2003 (68 FR 39087), EPA
published final NPDES construction general permits for small
construction activity in Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10. At the
time of publication, the State Coastal Zone Management Act
certification for Massachusetts had not been received, therefore the
neither the small or large construction activity general permits were
issued in Massachusetts. EPA Region 1 received certification from the
Office of Coastal Zone Management. The Office concurred with EPA's
certification that the permit as proposed is consistent with the
Coastal Zone Management enforceable program policies.
Today's action reissues EPA's NPDES General Permit for Storm Water
Discharges from Construction Activities for the Commonwealth of
Massachusetts and Indian country in Massachusetts. The permit's terms
and conditions are those set forth in the Construction General Permit
reissued on July 1, 2003 (68 FR 39087) and available at http://www.epa.gov/npdes/stormwater/cgp.
The state specific requirements for
the Commonwealth of Massachusetts, except Indian country, under section
401 of the Clean Water Act are found in part 9.A.1 of the construction
general permit. The Office of Coastal Zone Management did not add any
additional requirements to the permit.
Additional information regarding the statutory and regulatory
history of the final permit and storm water program; significant
changes to the permit; and a summary of the terms and conditions of the
permit are found in the July 1, 2003 Federal Register and are not being
repeated here.
II. Executive Order 12866
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may: (1) Have an annual
effect on the economy of $100 million or more or adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or Tribal governments or communities; (2) create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; (3) materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the Executive Order. OMB has exempted
review of NPDES general permits under the terms of Executive Order
12866.
III. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rule-making requirements under the Administrative
Procedures Act or any other statute unless the agency certifies that
the rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
Issuance of an NPDES general permit is not subject to rulemaking
requirements, under APA section 553 or any other law, and is thus not
subject to the RFA requirements. The APA defines two broad, mutually
exclusive categories of agency action--``rules'' and ``orders.'' Its
definition of ``rule'' encompasses ``an agency statement of general or
particular applicability and future effect designed to implement,
interpret, or prescribe law or policy or describing the organization,
procedure, or practice requirements of an agency * * *'' APA section
551(4). Its definition of ``order'' is residual: ``a final disposition
* * * of an agency in a matter other than rule making but including
licensing.'' APA section 551(6) (emphasis added). The APA defines
``license'' to ``include * * * an agency permit * * *'' APA section
551(8). The APA thus categorizes a permit as an order, which by the
APA's definition is not a rule. Section 553 of the APA establishes
``rule making'' requirements. The APA defines ``rule making'' as ``the
agency process for formulating, amending, or repealing a rule.'' APA
section 551(5). By its terms, then, section 553 applies only to
``rules'' and not also to ``orders,'' which include permits.
IV. 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. UMRA uses the term ``regulatory
actions'' to refer to regulations. (See, e.g., UMRA section 201, ``Each
agency shall * * * assess the effects of Federal regulatory actions * *
* (other than to the extent that such regulations incorporate
requirements specifically set forth in law)'' (emphasis added)). UMRA
section 102 defines ``regulation'' by reference to 2 U.S.C. 658 which
in turn defines ``regulation'' and ``rule'' by reference to section
601(2) of the Regulatory Flexibility Act (RFA). That section of the RFA
defines ``rule'' as ``any rule for which the agency publishes a notice
of proposed rulemaking pursuant to section 553(b) of [the
Administrative Procedure Act (APA)], or any other law. * * *'' As
discussed in the RFA section of this notice, NPDES general permits are
not ``rules'' under the APA and thus not subject to the APA requirement
to publish a notice of proposed rulemaking. NPDES general permits are
also not subject to such a requirement under the CWA. While EPA
publishes a notice to solicit public comment on draft general permits,
it does so pursuant to the CWA section 402(a) requirement to provide
``an opportunity for a hearing.'' Thus, NPDES general permits are not
``rules'' for RFA or UMRA purposes.
V. Paperwork Reduction Act
EPA has reviewed the requirements imposed on regulated facilities
resulting from the final construction general permit under the
Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. The information
collection requirements of the construction general permit for large
construction activities have already been approved by the Office of
Management and Budget (OMB) (OMB Control No. 2040-0188) in previous
submissions made for the NPDES permit program under the provisions of
the Clean Water Act. Information collection requirements of the
construction general
[[Page 45819]]
permit for small construction activities were submitted to OMB (OMB
Control No. 2040-0211) for review and approval and will be published in
a separate Federal Register Notice.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: July 16, 2003.
Linda M. Murphy,
Director, Office of Ecosystem Protection.
[FR Doc. 03-19744 Filed 8-1-03; 8:45 am]
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