[Federal Register Volume 73, Number 189 (Monday, September 29, 2008)]
[Notices]
[Pages 56572-56578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22555]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-8720-7; EPA-HQ-OW-2005-0007]
Final National Pollutant Discharge Elimination System (NPDES)
General Permit for Stormwater Discharges From Industrial Activities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of availability.
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SUMMARY: EPA Regions 1, 2, 3, 5, 6, 9, and 10 today are finalizing
EPA's NPDES general permit for stormwater discharges from industrial
activity, also referred to as the Multi-Sector General Permit (MSGP).
The MSGP consists of thirty four (34) separate Regional EPA permits
that may vary from each other based on State or Tribal water quality-
based requirements. This permit replaces the existing permits that
expired on October 30, 2005. As with the earlier permits, this permit
authorizes the discharge of stormwater associated with industrial
activities in accordance with the terms and conditions described
therein. Industrial dischargers have the choice to seek coverage under
an individual permit. An individual permit may be necessary if the
discharger cannot meet the terms and conditions or eligibility
requirements in the permit.
DATES: This permit is effective today, September 29, 2008. This
effective date is necessary to provide dischargers with the immediate
opportunity to comply with Clean Water Act requirements in light of the
expiration of the MSGP 2000 on October 30, 2005. In accordance with 40
CFR Part 23, this permit shall be considered issued for the purpose of
judicial review on October 13, 2008. Under section 509(b) of the Clean
Water Act, judicial review of this general permit can be had by filing
a petition for review in the United States Court of Appeals within 120
days after the permit is considered issued for purposes of judicial
review. Under section 509(b)(2) of the Clean Water Act, the
requirements in this permit may not be challenged later in civil or
criminal proceedings to enforce these requirements. In addition, this
permit may not be challenged in other agency proceedings. Deadlines for
submittal of notices of intent are provided in Part 1.4 of the MSGP.
This permit also provides additional dates for compliance with the
terms of these permits.
EPA will host a Web cast presentation on Wednesday, November 5 from
12 noon to 2 p.m. (Eastern Standard Time) to explain the new permit
requirements.
[[Page 56573]]
Registration information will be available on http://www.epa.gov/npdes/training two weeks before the Web cast.
FOR FURTHER INFORMATION CONTACT: For further information on this final
NPDES general permit, contact the appropriate EPA Regional Office
listed in section I.D, contact Greg Schaner, EPA Headquarters, Office
of Water, Office of Wastewater Management at tel.: 202-564-0721, or
send questions via e-mail to EPA's stormwater permit mailbox:
SWpermit@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Final Permit Apply To Me?
If a discharger chooses to seek coverage under this MSGP to be
authorized to discharge stormwater from industrial activities, the MSGP
provides specific requirements for preventing contamination of
stormwater discharges from industrial facilities listed in the sectors
shown below:
Sector A--Timber Products.
Sector B--Paper and Allied Products Manufacturing.
Sector C--Chemical and Allied Products Manufacturing.
Sector D--Asphalt Paving and Roofing Materials Manufactures and
Lubrican Manufacturers.
Sector E--Glass, Clay, Cement, Concrete, and Gypsum Product
Manufacturing.
Sector F--Primary Metals.
Sector G--Metal Mining (Ore Mining and Dressing).
Sector H--Coal Mines and Coal Mining-Related Facilities.
Sector I--Oil and Gas Extraction and Refining.
Sector J--Mineral Mining and Dressing.
Sector K--Hazardous Waste Treatment Storage or Disposal.
Sector L--Landfills and Land Application Sites.
Sector M--Automobile Salvage Yards.
Sector N--Scrap Recycling Facilities.
Sector O--Steam Electric Generating Facilities.
Sector P--Land Transportation.
Sector Q--Water Transportation.
Sector R--Ship and Boat Building or Repairing Yards.
Sector S--Air Transportation Facilities.
Sector T--Treatment Works.
Sector U--Food and Kindred Products.
Sector V--Textile Mills, Apparel, and other Fabric Products
Manufacturing.
Sector W--Furniture and Fixtures.
Sector X--Printing and Publishing.
Sector Y--Rubber, Miscellaneous Plastic Products, and Miscellaneous
Manufacturing Industries.
Sector Z--Leather Tanning and Finishing.
Sector AA--Fabricated Metal Products.
Sector AB--Transportation Equipment, Industrial or Commercial
Machinery.
Sector AC--Electronic, Electrical, Photographic and Optical Goods.
Sector AD--Reserved for Facilities Not Covered Under Other Sectors and
Designated by the Director.
B. How Can I Get Copies of This Document and Other Related Information?
1. Docket. EPA has established an official public docket for this
action under Docket ID No. OW-2005-0007. Publicly available docket
materials are available either electronically through http://www.regulations.gov or in hard copy at the Water Docket in the EPA
Docket Center, (EPA/DC) EPA West, Room 3334, 1301 Constitution Ave.,
NW., Washington, DC 20460. Publicly available docket materials are
available in hard copy at the EPA Docket Center Public Reading Room,
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The telephone number for the Public Reading Room is
(202) 566-1744, and the telephone number for the Water Docket is (202)
566-2426.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the Federal Register
listings at http://www.epa.gov/fedrgstr/.
Electronic versions of the final permit and fact sheet are
available at EPA's Web site http://www.epa.gov/npdes/stormwater/msgp.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.regulations.gov/fdmspublic/component/main
view public comments, access the index listing of the contents of the
official public docket, and to access those documents in the public
docket that are available electronically. Once in the system, select
``search'', then key in the appropriate docket identification number.
Certain types of information will not be placed in the EPA Dockets.
Information claimed as CBI and other information whose disclosure is
restricted by statute, which is not included in the official public
docket, will not be available for public viewing in EPA's electronic
public docket. EPA policy is that copyrighted material will not be
placed in EPA's electronic public docket but will be available only in
printed, paper form in the official public docket. Although not all
docket materials may be available electronically, you may still access
any of the publicly available docket materials through the docket
facility identified in section I.B.1.
Response to public comments. EPA received 92 comments on the
proposed permit from industry (52), government (20), and the public
(20). EPA has responded to all significant comments received and has
included these responses in a separate document in the public docket
for this permit. See the document titled Proposed MSGP: EPA's Response
to Public Comments.
C. Public Meeting
EPA held an informal public meeting at EPA headquarters in
Washington, DC, on December 20, 2005. The public meeting was attended
by a wide variety of stakeholders including representatives from
industry, government agencies, and environmental organizations. The
public meeting included a presentation covering the major provisions of
the proposed permit and a question and answer session. The presentation
can be found in the public docket for this permit.
D. Who Are the EPA Regional Contacts for This Permit?
For EPA Region 1, contact Thelma Murphy at tel.: (617) 918-1615 or e-
mail at murphy.thelma@epa.gov.
For EPA Region 2, contact Stephen Venezia at tel.: (212) 637-3856 or e-
mail at venezia.stephen@epa.gov or for Puerto Rico, Sergio Bosques at
tel.: (787) 977-5838 or e-mail at bosques.sergio@epa.gov.
For EPA Region 3, contact Garrison Miller at tel.: (215) 814-5745 or e-
mail at miller.garrison@epa.gov.
For EPA Region 5, contact Brian Bell at tel.: (312) 886-0981 or e-mail
at bell.brianc@epa.gov.
For EPA Region 6, contact Brent Larsen at tel.: (214) 665-7523 or e-
mail at: larsen.brent@epa.gov.
For EPA Region 9, contact Eugene Bromley at tel.: (415) 972-3510 or e-
mail at bromley.eugene@epa.gov.
For EPA Region 10, contact Misha Vakoc at tel.: (206) 553-6650 or e-
mail at vakoc.misha@epa.gov.
II. Background
Section 405 of the Water Quality Act of 1987 (WQA) added section
402(p) of the Clean Water Act (CWA), which directed the Environmental
Protection Agency (EPA) to develop a phased approach to regulate
stormwater discharges under the National Pollutant Discharge
Elimination System (NPDES) program. EPA published a final regulation on
the first phase on this program on November 16, 1990,
[[Page 56574]]
establishing permit application requirements for ``stormwater
discharges associated with industrial activity.'' See 55 FR 48063. EPA
defined the term ``stormwater discharge associated with industrial
activity'' in a comprehensive manner to cover a wide variety of
facilities. See 40 CFR 122.26(b)(14). EPA is issuing the MSGP under
this statutory and regulatory authority.
Dischargers choosing to be covered by the MSGP must certify in
their notice of intent (NOI) that they meet the requisite eligibility
requirements, described in Part 1 of the permit. In addition,
dischargers must install and implement control measures to meet the
effluent limits required in Part 2 and develop a stormwater pollution
prevention plan (SWPPP) consistent with Part 5 describing their control
measures used to achieve the effluent limits. Under the MSGP, a
facility is required to take corrective action (Part 3) to modify or
replace control measures in order to eliminate certain unauthorized
releases, or conditions giving rise to violations of effluent limits or
exceedances above applicable water quality standards. Facilities are
also required to conduct quarterly site inspections (Part 4.1),
quarterly visual assessments of the stormwater discharge (Part 4.2),
and annual comprehensive site inspections (Part 4.3). Permitted
facilities are required to submit to EPA quarterly benchmark monitoring
results (Part 6.2.1), and, where applicable, stormwater effluent data
relating to impaired waters (Part 6.2.4) and compliance with numeric
effluent limitations guidelines (Part 6.2.2). EPA notes that Part 6.2.1
emphasizes that the benchmark thresholds used for monitoring are not
effluent limits, but rather information that is primarily for the use
of the industrial facility to determine the overall effectiveness of
the control measures and to assist in understanding when corrective
action(s) may be necessary. In addition, permittees are required to
submit an annual report that includes the findings of the facility's
comprehensive site inspection and a summary of any corrective actions
required during the past year.
III. Scope and Applicability of the Multi-Sector General Permit
The MSGP 2000 expired at midnight, October 30, 2005. Dischargers
that were previously covered by the MSGP 2000 have been covered by an
administrative continuance in the interim period until they are
authorized for coverage under this permit.
A. Geographic Coverage
This permit provides coverage for sectors of industrial point
source discharges that occur in areas not covered by an approved State
NPDES program. The geographic coverage of this permit is listed in
Appendix C of this permit. EPA notes that unlike the MSGP 2000,
facilities located in Regions 4 and 8 will not be covered by this
permit because they are issuing their own NPDES general permit. EPA
also notes that because certifications required by section 401 of the
Clean Water Act were not received in time, coverage under this permit
is not yet available in the following areas:
The State of Alaska, except Indian Country lands;
The State of Idaho, except Indian Country lands;
Indian Country lands within the State of Idaho, except
Duck Valley Reservation lands;
Indian Country lands within the State of Oregon, except
Fort McDermitt Reservation lands;
Indian Country lands within the State of Washington; and
Federal facilities in the State of Washington, except
those located on Indian Country lands.
EPA will announce the availability of coverage under the MSGP for these
areas in a separate Federal Register notice as soon as possible after
the certifications are completed.
B. Categories of Facilities Covered
This permit regulates stormwater discharges from industrial
facilities in 29 sectors, as shown above in section I.A., in the five
states and other areas (e.g., federal facilities, Indian Country lands,
and U.S. territories) where EPA remains the permitting authority. See
Appendix D of the final MSGP and the MSGP fact sheet for more complete
information.
C. Summary of Significant Changes from 2000 Multi-Sector General Permit
This permit replaces the MSGP 2000 that was issued for a five-year
term on October 30, 2000 (65 FR 64746). The MSGP 2000 was subsequently
corrected on January 9, 2001 (66 FR 1675-1678) and March 23, 2001 (66
FR 16233-16237). On April 16, 2001 (66 FR 19483-19485), EPA re-issued
the permit, as corrected, for facilities in certain areas of Regions 8
and 10.
This permit is structured in nine parts: General requirements that
apply to all facilities (e.g., eligibility of discharges, effluent
limitations, storm water pollution prevention plan (SWPPP)
requirements, monitoring and reporting requirements (Parts 1-7)),
industrial sector-specific conditions (Part 8), and specific
requirements applicable to facilities within individual States or on
Indian Country lands (Part 9). Additionally, the appendices provide
forms for the Notice of Intent (NOI), the Notice of Termination, the
Conditional No Exposure Exclusion, and the annual report, as well as
step-by-step procedures for determining eligibility with respect to
protecting historic properties and endangered species, and for
calculating site-specific, hardness-dependent benchmarks.
EPA made a number of changes to the permit from the MSGP 2000.
These changes are summarized below and are discussed in more detail in
the MSGP fact sheet.
Distinction Between Effluent Limits and SWPPP Requirements
The permit clearly distinguishes between the effluent limitations
(or effluent limits) from the requirements relating to the development
of the SWPPP. Effluent limits (in Part 2, and for select industrial
sectors, in Part 8) are qualitative and quantitative control
requirements to which all permittees are subject, while the SWPPP is a
planning document that must be prepared by all facility operators that
describes the site and the pollutants potentially discharged in
stormwater, and documents the control measures selected, designed,
installed, and implemented to meet the effluent limitations.
Additionally, the SWPPP requirements were modified to separate the
provisions required for the initial document developed prior to NOI
submittal and the requirements for the additional documentation of
actions taken (e.g., inspections, training, correction actions, etc.)
during the permit term. Finally, the effluent limits themselves were
reorganized to more clearly distinguish those that are technology-based
from those that are water quality-based.
Discharge Authorization Time Frame
The waiting period for operators who have correctly completed and
submitted their NOIs is 30 days (or, in some cases, 60 days) to provide
for sufficient review by the Fish & Wildlife Service and/or the
National Marine Fisheries Service to determine if the permit's
authorization to a particular discharger raises any significant
concerns with respect to any federally-listed species or critical
habitat. During this period, the public may review this information as
well. The waiting period begins after EPA posts the operator's NOI on
the eNOI Web site. The duration of the waiting
[[Page 56575]]
period depends on when the operator commenced or proposes to commence
discharging.
Electronic Systems for Submittal of Notices of Intent (NOIs), Water
Locator Tool, and Reporting of Monitoring Data
EPA is launching an updated electronic system for submitting NOIs.
This ``eNOI'' system is available to all operators, and can be accessed
at http://www.epa.gov/npdes/eNOI. The system helps industrial operators
fill in answers quickly and correctly, and should better facilitate an
operator's coverage under the permit. EPA encourages all operators to
use this system. Authorized permittees will be notified by email of
their authorization and their specific monitoring requirements.
EPA has added a new web-based tool, the Water Locator, that will
help operators determine their latitude and longitude, their receiving
water, relevant total maximum daily loads (TMDLs), and pollutants of
particular concern (i.e., those for which there is a specific criterion
in the receiving water, and those for which a receiving water is
impaired). The Water Locator can be accessed at http://www.epa.gov/npdes/stormwater/msgp.
In addition, operators will now be able to report all monitoring
data electronically through the eNOI system. This system for electronic
reporting will be available in the next 6 months. All electronic
reporting will be through EPA's on-line eNOI system, available at
http://www.epa.gov/npdes/eNOI. EPA has delayed implementation of
required monitoring for 6 months to ensure that the electronic
reporting system is ready when monitoring begins.
Information Required for Notices of Intent (NOIs)
This permit specifies the information that is required to be
provided in NOIs so that EPA can determine whether any further water
quality-based requirements are necessary and to enable the eNOI system
to automatically inform the operator of its specific monitoring
requirements. Operators are required to provide more specific
information regarding their receiving waterbody, including whether the
waterbody is impaired, and, if so, for which pollutant it is impaired
and whether there is an approved or established TMDL for the waterbody,
and whether the waterbody is designated by a State or Tribal Authority
as Tier 2 or 2.5 for antidegradation purposes. The operator also needs
to identify if it is a new discharger, the size of its property, and
which effluent guidelines it is subject to (if any). In addition, to
enhance protection of endangered species, if the operator is certifying
eligibility under Criterion E of Appendix E, then he/she will need to
provide additional information supporting this certification. In
addition, the operator is asked to specify if its facility will be
inactive and unstaffed during the permit term, and, if so, for how
long.
Water Quality-Based Effluent Limits
The permit contains water quality-based effluent limits (WQBELs) to
ensure that discharges are controlled as necessary to meet water
quality standards in receiving waters.
Discharges to Impaired Waters--The permit contains
different requirements for new and existing dischargers and for those
that are discharging to impaired waters with a completed total maximum
daily load (TMDL) as compared to those without a TMDL. New dischargers
are only eligible for discharge authorization if they document that
either there is no exposure to stormwater of the pollutant for which
the water is impaired at the site, or the impairment pollutant is not
present at the operator's site, or that the discharge is not expected
to cause or contribute to a water quality standards exceedance. For
existing discharges to impaired waters with a completed TMDL, EPA will
inform the operator of any additional effluent limits or controls that
are necessary for the discharge to be consistent with the assumptions
of any available wasteload allocation in the TMDL. The permittee is
also required to monitor its discharge for any pollutant(s) for which
the waterbody is impaired. For existing discharges to impaired waters
without a completed TMDL, the permittee is required to control its
discharge as necessary to meet water quality standards and to monitor
for the pollutant(s) causing the impairment.
Antidegradation Requirements--EPA has clarified how
operators can meet antidegradation requirements in order to be
authorized to discharge. If an NOI indicates that an operator is
seeking coverage for a new discharge to a Tier 2 water (or a water
considered to be a Tier 2.5 water), EPA will then determine if
additional requirements are necessary to be consistent with the
applicable antidegradation requirements, or if an individual permit
application is necessary. Furthermore, operators are not eligible for
coverage under this permit if they are discharging to waters designated
by a State or Tribe as Tier 3 for antidegradation purposes.
Protection of Endangered Species
During EPA's consultation with the Fish & Wildlife Service and
National Marine Fisheries Service (``the Services'') pursuant to
section 7(a)(2) of the Endangered Species Act (ESA), modifications have
been made to the directions provided to operators in Appendix E
regarding steps that must be followed to properly certify eligibility
under Part 1.1.4.5 (Endangered and Threatened Species and Critical
Habitat Protection). In addition, certain benchmarks have been revised
to provide greater protection to listed species. EPA revised the
ammonia benchmark from 19 mg/L to 2.14 mg/L to provide a better
indicator of the adverse impact to endangered mussel species. EPA
selected this benchmark based on a level that is considered protective
of mussel species in waters up to pH 8; it will also be protective of
other species in waters with a pH up to 8.5.
Also, EPA adjusted the benchmarks for six hardness-dependent metals
(i.e., silver, cadmium, lead, nickel, copper, and zinc) so that the
benchmark concentrations are site-specific depending on the hardness
levels in the receiving water. This change affects 12 sectors. Where a
permittee is required to monitor for a hardness-dependent metal, he/she
must first determine the hardness value of the receiving water. The
benchmark concentration is then determined by comparing the table of
hardness ranges (see Appendix J) to the actual, measured value for
hardness in the receiving water. This change will provide better
protection to some listed species and will further ensure that
discharges do not cause or contribute to exceedances of water quality
standards with numeric criteria expressed as hardness-dependent values.
Corrective Actions
This permit specifies corrective actions required of permittees.
The provisions in Part 3 specify the types of conditions at the site
that trigger corrective action requirements, what must be done to
address such conditions and ensure that the permittee remains in
compliance with the permit, or promptly returns to compliance in the
case of violations, and the deadlines for completing corrective action.
The permit also clarifies that not conducting required corrective
action is a permit violation in and of itself, in addition to any
underlying violation that may have triggered the requirement for
corrective action. A summary of all corrective actions initiated and/or
completed each year must be reported to EPA in the
[[Page 56576]]
annual comprehensive site inspection report.
Monitoring
Several of the changes made in this permit to the monitoring
requirements of the MSGP 2000 are listed below.
Inactive and unstaffed sites may exercise a waiver for
benchmark monitoring and quarterly visual assessments as long as there
are no industrial materials or activities exposed to stormwater at the
sites. Because of the difficulty of accessing remote sites, operators
of mining operations that are inactive and unstaffed may continue to
exercise this waiver without demonstrating that its industrial
materials or activities are not exposed to stormwater, but EPA may
impose alternate, site-specific requirements where necessary for the
protection of water quality standards.
Unless subject to a waiver, or an alternative schedule for
climates with irregular stormwater runoff, permittees must monitor
quarterly during year 1 for benchmarks. Following 4 quarters of
benchmark monitoring, if the average of the 4 monitoring values does
not exceed the benchmark for that specific parameter, the permittee has
fulfilled his/her benchmark monitoring requirements for that parameter
for the permit term. If the average of the 4 quarters of monitoring
values exceeds the benchmark, the permittee is required to perform
corrective action and conduct an additional 4 quarters of monitoring,
unless, the permittee determines (and documents in the SWPPP) that no
further pollutant reductions are technologically available and
economically practicable and achievable in light of best industry
practice to meet the effluent limits in Part 2 of the permit. If such a
determination is made, the permittee may reduce monitoring for that
pollutant to once-per-year for the duration of the permit term. At any
time prior to completion of the first 4 quarters of monitoring, if the
permittee determines that it is mathematically certain that his/her
average after 4 quarters will exceed the benchmark (e.g., the sum of
results to date exceeds 4 times the benchmark), the permittee must
review its control measures and perform any required corrective action
immediately (or document why no corrective action is required), without
waiting for the full 4 quarters of monitoring data. If after the
permittee has modified his/her control measures and conducted 4
additional quarters of monitoring, the average still exceeds the
benchmark (or if an exceedance of the benchmark by the four quarter
average is mathematically certain prior to conducting the full 4
additional quarters of monitoring), the permittee must again review
his/her control measures and either resample an additional 4 times or
document that no further pollutant reductions are technologically
available and economically practicable and achievable in light of best
industry practice to meet the effluent limits in Part 2 of the permit.
A permittee who discharges a pollutant causing an
impairment to an impaired waterbody must monitor once-per-year for that
pollutant during a stormwater event if there is no TMDL for the
waterbody. Monitoring may be waived after one year if the pollutant was
not detected in the sample and the permittee documents that the
pollutant is not exposed to stormwater at the site. Monitoring may also
be waived if the permittee documents that the presence of a pollutant
of concern in its discharge is attributable to natural background
pollutant levels in stormwater runoff, and not to the activities of the
permittee. If the discharge is to a waterbody for which a TMDL has
established a WLA applicable to the facility, EPA will inform the
permittee of specific monitoring instructions, including the
pollutant(s) for which monitoring is to be conducted and the required
frequency.
Follow-up monitoring requirements have been added when
results indicate a permittee's discharge exceeds a numeric effluent
limitation to verify that control measures have been modified to
control the discharge as necessary to meet the effluent limit. If the
follow-up monitoring also exceeds the limit, the permittee must submit
an exceedance report to EPA within 30 days of receiving the analytical
data, documenting the reason for the exceedance and the corrective
action taken to eliminate it, including a corrective action schedule
where applicable.
EPA has added provisions enabling dischargers to avoid
corrective action and subsequent monitoring requirements if the
exceedance of a benchmark is attributable solely to natural background
levels of that pollutant in stormwater runoff. In order to use this
provision, the discharger must: (1) Have benchmark results that show
pollutant levels are less than or equal to the concentration of that
pollutant in the natural background; (2) document the supporting
rationale for concluding that benchmark exceedances are attributable
solely to natural background pollutant levels; and (3) notify EPA in
the fourth benchmark monitoring report that benchmark exceedances are
attributable solely to natural background pollutant levels.
Annual Report
Permittees are now required to submit to EPA an annual report that
includes the findings from their annual comprehensive site inspection
report and a summary of corrective actions required and taken during
the reporting period. EPA has provided a recommended form for each
permittee to use in filing its annual report. See Appendix I.
Industry Sector-Specific Requirements
The following key elements of the permit are included in Part 8,
which describes requirements specific to particular industry sectors:
For many sectors, general requirements to address
pollutant discharges from materials handling areas, fueling areas, etc.
were consolidated in the technology-based effluent limits in Part 2.1
that are applicable to all sectors.
Mining Sectors G, H, and J--The permit now specifically
includes coverage for construction and exploration activities under
this permit, where in the past those activities were required to be
covered separately under the Construction General Permit (CGP). To
facilitate such coverage, additional requirements have been added
regarding site map preparation; management, inspection, maintenance,
and cessation of clearing, grading, and excavation activities;
monitoring frequency; and temporary and final stabilization. These new
requirements largely mirror those in the CGP for these activities. The
scope of coverage has also been clarified, and an exception provided to
the requirement that inactive and unstaffed sites have no industrial
materials or activities exposed to stormwater in order to exercise
applicable monitoring and inspection waivers.
Sector P--Text has been added to include illicit plumbing
connections among the potential pollutant sources addressed, and a
requirement has been added to document specific good housekeeping
control measures used in each of the facility areas.
Sector S--Requirements have been added emphasizing control
measures, facility inspections, good housekeeping, vehicle and
equipment washwater, and monitoring during the deicing season and for
implementing controls to collect or contain contaminated melt water
from collection areas used for disposal of contaminated snow.
[[Page 56577]]
Sector AC--Electrical and electronic equipment and
components has been added as a new subsector.
D. Permit Appeal Procedures
In accordance with 40 CFR part 23, this permit shall be considered
issued for the purpose of judicial review on October 13, 2008. Under
section 509(b) of the Clean Water Act, judicial review of this general
permit can be had by filing a petition for review in the United States
Court of Appeals with 120 days after the permit is considered issued
for purposes of judicial review. Under section 509(b)(2) of the Clean
Water Act, the requirements in this permit may not be challenged later
in civil or criminal proceedings to enforce these requirements. In
addition, this permit may not be challenged in other agency
proceedings. In addition, rather than submitting an NOI to be covered
under this permit, persons may apply for an individual permit as
specified at 40 CFR 122.21 (and authorized at 40 CFR 122.28), and then
petition the Environmental Appeals Board to review any conditions of
the individual permit (40 CFR 124.19 as modified on May 15, 2000, 65 FR
30886).
IV. Compliance with the Regulatory Flexibility Act for General Permits
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure 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.
The legal question of whether a general permit (as opposed to an
individual permit) qualifies as a ``rule'' or as an ``adjudication''
under the Administrative Procedure Act (APA) has been the subject of
periodic litigation. In a recent case, the court held that the CWA
section 404 Nationwide general permit before the court did qualify as a
``rule'' and therefore that the issuance of the general permit needed
to comply with the applicable legal requirements for the issuance of a
``rule.'' National Ass'n of Home Builders v. U.S. Army Corps of
Engineers, 417 F.3d 1272, 1284-85 (DC Cir. 2005) (Army Corps general
permits under section 404 of the Clean Water Act are rules under the
APA and the Regulatory Flexibility Act; ``Each NWP [nationwide permit]
easily fits within the APA's definition of a `rule.'* * * As such, each
NWP constitutes a rule * * *'').
As EPA stated in 1998, ``the Agency recognizes that the question of
the applicability of the APA, and thus the RFA, to the issuance of a
general permit is a difficult one, given the fact that a large number
of dischargers may choose to use the general permit.'' 63 FR 36489,
36497 (July 6, 1998). At that time, EPA ``reviewed its previous NPDES
general permitting actions and related statements in the Federal
Register or elsewhere,'' and stated that ``[t]his review suggests that
the Agency has generally treated NPDES general permits effectively as
rules, though at times it has given contrary indications as to whether
these actions are rules or permits.'' Id. at 36496. Based on EPA's
further legal analysis of the issue, the Agency ``concluded, as set
forth in the proposal, that NPDES general permits are permits [i.e.,
adjudications] under the APA and thus not subject to APA rulemaking
requirements or the RFA.'' Id. Accordingly, the Agency stated that
``the APA's rulemaking requirements are inapplicable to issuance of
such permits,'' and thus ``NPDES permitting is not subject to the
requirement to publish a general notice of proposed rulemaking under
the APA or any other law * * * [and] it is not subject to the RFA.''
Id. at 36497.
However, the Agency went on to explain that, even though EPA had
concluded that it was not legally required to do so, the Agency would
voluntarily perform the RFA's small-entity impact analysis. Id. EPA
explained the strong public interest in the Agency following the RFA's
requirements on a voluntary basis: ``[The notice and comment] process
also provides an opportunity for EPA to consider the potential impact
of general permit terms on small entities and how to craft the permit
to avoid any undue burden on small entities.'' Id. Accordingly, with
respect to the NPDES permit that EPA was addressing in that Federal
Register notice, EPA stated that ``the Agency has considered and
addressed the potential impact of the general permit on small entities
in a manner that would meet the requirements of the RFA if it
applied.'' Id.
Subsequent to EPA's conclusion in 1998 that general permits are
adjudications, rather than rules, as noted above, the DC Circuit
recently held that Nationwide general permits under section 404 are
``rules'' rather than ``adjudications.'' Thus, this legal question
remains ``a difficult one'' (supra). However, EPA continues to believe
that there is a strong public policy interest in EPA applying the RFA's
framework and requirements to the Agency's evaluation and consideration
of the nature and extent of any economic impacts that a CWA general
permit could have on small entities (e.g., small businesses). In this
regard, EPA believes that the Agency's evaluation of the potential
economic impact that a general permit would have on small entities,
consistent with the RFA framework discussed below, is relevant to, and
an essential component of, the Agency's assessment of whether a CWA
general permit would place requirements on dischargers that are
appropriate and reasonable. Furthermore, EPA believes that the RFA's
framework and requirements provide the Agency with the best approach
for the Agency's evaluation of the economic impact of general permits
on small entities. While using the RFA framework to inform its
assessment of whether permit requirements are appropriate and
reasonable, EPA will also continue to ensure that all permits satisfy
the requirements of the Clean Water Act.
Accordingly, EPA hereby commits that the Agency will operate in
accordance with the RFA's framework and requirements during the
Agency's issuance of CWA general permits (in other words, the Agency
commits that it will apply the RFA in its issuance of general permits
as if those permits do qualify as ``rules'' that are subject to the
RFA). In satisfaction of this commitment, during the course of this
MSGP permitting proceeding, the Agency conducted the analysis and made
the appropriate determinations that are called for by the RFA. In
addition, and in satisfaction of the Agency's commitment, EPA will
apply the RFA's framework and requirements in any future MSGP
proceeding as well as in the Agency's issuance of other NPDES general
permits. EPA anticipates that for most general permits the Agency will
be able to conclude that there is not a significant economic impact on
a substantial number of small entities. In such cases, the requirements
of the RFA framework are fulfilled by including a statement to this
effect in the permit fact sheet, along with a statement providing the
factual basis for the conclusion. A quantitative analysis of impacts
would only be required for permits that may affect a substantial number
of small entities, consistent with EPA guidance regarding RFA
certification \1\.
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\1\ EPA's current guidance, entitled Final Guidance for EPA
Rulewriters: Regulatory Flexibility Act as Amended by the Small
Business Regulatory Enforcement and Fairness Act, was issued in
November 2006 and is available on EPA's Web site: http://www.epa.gov/sbrefa/documents/rfafinalguidance06.pdf. After
considering the Guidance and the purpose of CWA general permits, EPA
concludes that general permits affecting less than 100 small
entities do not have a significant economic impact on a substantial
number of small entities.
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[[Page 56578]]
V. Quantitative Analysis of Economic Impacts of the MSGP
EPA has determined, in consideration of the discussion in section
IV above, that the issuance of the MSGP potentially could affect a
substantial number of small entities. Therefore, to determine what, if
any, economic impact this permit may have on small businesses, EPA
conducted an economic assessment of this general permit. Based on this
assessment, EPA concludes that this permit will not have a significant
economic impact on a substantial number of businesses, including small
businesses. The estimated increased compliance cost per permittee
ranges from a low of $8.37 per year to a high of $28.27 per year. All
cost estimates are presented in 2005 dollars. As a percentage of annual
sales, the expected incremental burden of these estimated costs is
small. The cost-to-sales ratios are small across all MSGP sectors, with
the largest impacts observed in Sectors I (0.003 percent) and P (0.003
percent).
These cost estimates reflect the incremental monitoring,
documentation and reporting costs imposed by this permit, relative to
the comparable costs for compliance with MSGP 2000. They do not include
the costs of additional control measures that may be required as a
result of more rigorous documentation and reporting requirements (e.g.,
for corrective action). EPA recognizes that these costs may be
significant for some facilities, but believes that relatively few
facilities will have significantly increased costs relative to MSGP
2000 because in most cases the underlying standards of control have not
changed. EPA was unable to quantify these costs because EPA is not able
to predict what site-specific additional control measures may be
necessary in these limited cases.
Based on EPA's analysis, the Agency concludes that this permit will
not result in a significant economic impact on a substantial number of
small businesses. The factual basis for this conclusion is included in
the economic analysis for the permit, available as part of the docket
for this permit, and summarized above.
1. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: September 17, 2008.
Robert W. Varney,
Regional Administrator, EPA Region 1.
2. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: September 17, 2008.
Carl-Axel P. Soderberg,
Division Director, Caribbean Environmental Protection Division, EPA
Region 2.
3. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: September 16, 2008.
Jon M. Capacasa,
Director, Water Protection Division, EPA Region 3.
4. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: September 16, 2008.
Timothy C. Henry,
Acting Director, Water Division, EPA Region 5.
5. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: September 17, 2008.
Miguel I. Flores,
Director, Water Quality Protection Division, EPA Region 6.
6. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: September 16, 2008.
Alexis Strauss,
Director, Water Division, EPA Region 9.
7. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: September 16, 2008.
Christine Psyk,
Deputy Director, Office of Water and Watersheds, EPA Region 10.
[FR Doc. E8-22555 Filed 9-26-08; 8:45 am]
BILLING CODE 6560-50-P