[Federal Register: February 26, 2003 (Volume 68, Number 38)]
[Notices]
[Page 8902-8903]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26fe03-60]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-7455-5]
Public Notice of Draft National Pollutant Discharge Elimination
System (NPDES) General Permit for Storm Water Discharges from Federal
Facility Small Municipal Separate Storm Sewer Systems (MS4s) in
Colorado
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of availability of proposed NPDES general permit.
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SUMMARY: Region VIII of EPA is hereby giving notice of its tentative
determination to issue an NPDES general permit for regulated storm
water discharges from small municipal separate storm sewer systems
(MS4s). The general permit is applicable to Federal Facilities within
the State of Colorado. Only Federal Facilities located in urbanized
areas (as defined by the 2000 U.S. Census) within the State of Colorado
must apply. Federal facilities that are currently known to be located
within Colorado urbanized areas, and will need to apply for coverage
under the general permit include: Fort Carson; the General Services
Administration's Denver Federal Center; Peterson Air Force Base; the
U.S. Air Force Academy; the U.S. Department of Commerce--National
Institute of Standards and Technology, Boulder Campus; the U.S. Bureau
of Prisons Federal Correctional Institution, Englewood; and the
Veterans Affairs Medical Center Denver. Additional Federal Facilities
may need to apply for permit coverage at a later date based on
subsequent Census data. This notice announces the availability of the
proposed general permit and fact sheet for public comment.
NPDES permit coverage is required for small MS4s in accordance with
final EPA regulations for Phase II storm water discharges (64 FR 68722,
December 8, 1999). Operators of Phase II-designated small MS4s
(regulated small MS4s) are required to submit a Notice of Intent (NOI)
to EPA Region VIII to be covered under the general permit.
In accordance with the general permit, regulated small MS4
operators must develop, implement, and enforce a program designed to
reduce the discharge of pollutants from their MS4s to the maximum
extent practicable (MEP) to protect water quality and to satisfy the
appropriate water quality requirements of the Clean Water Act. The
small MS4 program must include the following six minimum control
measures: public education and outreach; public involvement and
participation; illicit discharge detection and elimination;
construction site runoff control; post-construction runoff control; and
pollution prevention/ good housekeeping. The rule assumes the use of
narrative, rather than numeric, effluent limitations achieved through
the implementation of best management practices (BMPs). Operators must
establish BMPs and measurable goals for each minimum measure in the
permit application. However, applicants will have up to five years to
fully develop and implement their storm water management program.
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Areas covered by
State Permit No. the general permit
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Colorado........................ COR042000......... Federal Facilities
in the State of
Colorado, except
those located in
Indian Country.
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DATES: Public comments on this proposal must be received or postmarked
no later than March 28, 2003. A public hearing may be requested within
the comment period concerning the proposed permit.
ADDRESSES: Public comments or requests for a public hearing should be
sent to: Greg Davis (8EPR-EP); Attention: NPDES Permits; U.S. EPA,
Region VIII; 999 18th Street, Suite 300; Denver, CO 80202-2466. Public
comments will also be accepted via electronic mail (E-mail) at
r8npdes@epa.gov.
Public Comment Period
Public comments are invited. Comments must be received or
postmarked no later than March 28, 2003. Each comment should cite the
page number and, where possible, the section(s) and/or paragraph(s) in
the draft permit or Fact Sheet to which each comment refers. Commenters
should use a separate paragraph for each issue discussed. Comments must
be sent to the address given above in the ADDRESSES section.
FOR FURTHER INFORMATION CONTACT: For a copy of the draft permit and
Fact Sheet or for further information on the draft permit, contact
either Greg Davis (303) 312-6082 (davis.gregory@epa.gov) or Vern Berry,
(303) 312-6234 (berry.vern@epa.gov), or at the address above in the
Addresses section. Copies of the draft permit and Fact Sheet may be
downloaded from the EPA Region VIII Web site at http://www.epa.gov/
downloaded from the EPA Region VIII Web site at http://www.epa.gov/
[[Page 8903]]
region8/water/stormwater/downloads.html.
SUPPLEMENTARY INFORMATION: When the general permit is issued, it will
be published by reference in the Federal Register. The general permit
will be effective on the date specified in the Federal Register with an
expiration five years from such date. Region VIII is not issuing NPDES
General Permits for Storm Water Discharges from Small Municipal
Separate Storm Sewer Systems (MS4s) located in Indian country. No MS4s
in Indian country have been determined to require small MS4 permit
coverage at this time.
Administrative Record: The proposed general permit and other
related documents in the administrative record are on file in the EPA
Region VIII NPDES file room and may be inspected upon request any time
between 8 a.m. and 4 p.m., Monday through Friday, excluding legal
holidays, at the address provided in the Addresses section above.
Requests to view these files in the Region VIII NPDES file room should
be sent to Greg Davis by phone at 303-312-6082, or by e-mail at
davis.gregory@epa.gov.
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 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; create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or 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 waived review of NPDES general permits under the terms of
Executive Order 12866.
Regulatory Flexibility Act
Issuance of an NPDES general permit is not subject to rulemaking
requirements, including the requirement for a general notice of
proposed rulemaking, under APA section 553 or any other law, and is
thus not subject to the RFA requirement to prepare an IRFA.
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.
Unfunded Mandates Reform Act
Section 201 of the Unfunded Mandates Reform Act (UMRA), Public Law
104-4, generally requires 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.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: February 14, 2003.
Stephen S. Tuber,
Acting Assistant Regional Administrator, Office of Partnerships and
Regulatory Assistance.
[FR Doc. 03-4521 Filed 2-25-03; 8:45 am]
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