[Federal Register: December 23, 2008 (Volume 73, Number 247)]
[Notices]
[Page 78786-78788]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23de08-78]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[FRL-8756-6]
Notice of Availability of Draft National Pollutant Discharge
Elimination System (NPDES) General Permit for Small Municipal Separate
Storm Sewer Systems (MS4)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of Availability of Draft NPDES General Permits.
-----------------------------------------------------------------------
SUMMARY: The Director of the Office of Ecosystem Protection,
Environmental Protection Agency--Region 1 (EPA), is issuing this Notice
of Availability of Draft NPDES general permits for discharges from
small MS4s to certain waters of the states of New Hampshire and
Vermont, and to certain waters on Indian Country lands in the states of
Connecticut and Rhode Island. These draft NPDES general permits
establish Notice of Intent (NOI) requirements, prohibitions, and
management practices for stormwater discharges from small MS4s. EPA is
proposing to issue six general permits. Throughout this document the
terms ``this permit'' or ``the permit'' will refer to all six general
permits.
Owners and/or operators of small MS4s that discharge stormwater
will be required to submit a NOI to EPA--Region 1 to be covered by the
general permit and will receive a written notification from EPA of
permit coverage and authorization to discharge under the general
permit. The eligibility requirements are discussed in the draft permit.
The small MS4 must meet the eligibility requirements of the permit
prior to submission of the NOI.
The draft general permits, appendices, and fact sheet are available
at http://www.epa.gov/region1/npdes/stormwater/MS4_2008_NH.html.
DATES: The public comment period is from the December 23, 2008 to
January 30, 2009. Interested persons may submit comments on the draft
general permit as part of the administrative record to the EPA--Region
1, at the address given below, no later than midnight January 30, 2009.
The general permit shall be effective on the date specified in the
Federal Register publication of the Notice of Availability of the final
general permit. The final general permit will expire five years from
the effective date.
ADDRESS: Submit comments by one of the following methods:
E-mail: Murphy.thelma @epa.gov.
Mail: Thelma Murphy, USEPA--Office of Ecosystem
Protection, One Congress Street--Suite 1100 (CIP), Boston, MA 02114.
No facsimiles (faxes) will be accepted.
The draft permit is based on an administrative record available for
public review at EPA--Region 1, Office of Ecosystem Protection (CIP),
One Congress Street, Suite 1100, Boston, Massachusetts 02114-2023. The
following SUPPLEMENTARY INFORMATION section sets forth principal facts
and the significant factual, legal and policy questions considered in
the development of the draft permit. A reasonable fee may be charged
for copying requests.
Public Meeting Information: EPA--Region 1 will hold a public
meeting to provide information about the draft general permit and its
requirements. The public meeting will include a brief presentation on
the draft general permit and a brief question and answer session.
Written, but not oral, comments for the official draft permit record
will be accepted at the public meeting. The public meeting will be at
the following location: Wednesday--January 28, 2009, Portsmouth City
Council Chambers, Portsmouth City Hall, One Junkins Avenue, Portsmouth,
NH 03801, 9 a.m.-10 a.m.
Public Hearing Information: Following the public meeting, a public
hearing will be conducted in accordance with 40 CFR 124.12 and will
provide interested parties with the opportunity to provide written and/
or oral comments for the official draft permit record. The public
hearing will be at the following location: Wednesday--January 28, 2009,
Portsmouth City Council Chambers, Portsmouth City Hall, One Junkins
Avenue, Portsmouth, NH 03801, 10:10 a.m.
FOR FURTHER INFORMATION CONTACT: Additional information concerning the
draft permit may be obtained between the hours of 9 a.m. and 5 p.m.
Monday through Friday excluding holidays from: Thelma Murphy, Office of
Ecosystem Protection, Environmental Protection Agency, 1 Congress
Street, Suite 1100 (CIP), Boston, MA 02114-2023; telephone: 617-918-
1615; e-mail: murphy.thelma@epa.gov
SUPPLEMENTARY INFORMATION:
I. Background of Proposed Permit
As stated previously, the Director of the Office of Ecosystem
Protection, EPA--Region 1, is proposing to reissue six NPDES general
permits for the discharge of stormwater from small MS4s to waters
within the states of New Hampshire and Vermont (federal facilities
only) and Indian lands within the states of Connecticut and Rhode
Island. The six permits are:
NHR041000--State of New Hampshire--Traditional.
NHR042000--State of New Hampshire--Non-Traditional.
NHR043000--State of New Hampshire--Transportation.
CTR04000I--State of Connecticut--Indian Lands.
RIR04000I--State of Rhode Island--Indian Lands.
VTR04000F--State of Vermont--Federal Facilities.
The conditions in the draft permit are established pursuant to
Clean Water Act (CWA) Section 402(p)(3)(iii) to ensure that pollutant
discharges from small MS4s are reduced to the maximum extent
practicable (MEP), protect water quality, and satisfy the appropriate
[[Page 78787]]
water quality requirements of the CWA. The regulations at 40 CFR
122.26(b)(16) define a small municipal separate storm sewer system as
``* * * all separate storm sewers that are:
(1) Owned or operated by the United States, a State, city, town,
borough, county, parish, district, association, or other public body
(created by or pursuant to State law) having jurisdiction over
disposal of sewage, industrial wastes, stormwater, or other wastes,
including special districts under State law such as a sewer
district, flood control district or drainage district, or similar
entity, or an Indian tribe or an authorized Indian tribal
organization, or a designated and approved management agency under
section 208 of the CWA that discharges to waters of United States.
(2) Not defined as `large' or `medium' municipal separate storm
sewer systems pursuant to paragraphs (b)(4) or (b)(7) or designated
under paragraph (a)(1)(v) of this section [40 CFR 122.26].
(3) This term includes systems similar to separate storm sewer
systems in municipalities such as systems at military bases, large
hospital or prison complexes, and highways and other thoroughfares.
The term does not include separate storm sewers in very discrete
areas, such as individual buildings.''
For example, an armory located in an urbanized area would not be
considered a regulated small MS4.
The draft general permit sets forth the requirements for the small
MS4 to ``reduce the discharge of pollutants to the maximum extent
practicable, including management practices, control techniques, and
system, design and engineering methods * * *'' (See section
402(p)(3)(B)(iii) of the CWA). MEP is the statutory standard that
establishes the level of pollutant reductions that MS4 operators must
achieve. EPA believes implementation of best management practices
(BMPs) designed to control storm water runoff from the MS4 is generally
the most appropriate approach for reducing pollutants to satisfy the
technology standard of MEP. Pursuant to 40 CFR 122.44(k), the draft
permit contains BMPs, including development and implementation of a
comprehensive stormwater management program (SWMP) as the mechanism to
achieve the required pollutant reductions.
Section 402(p)(3)(B)(iii) of CWA also authorizes EPA to include in
an MS4 permit ``such other provisions as [EPA] determines appropriate
for control of * * * pollutants.'' EPA believes that this provision
forms a basis for imposing water quality-based effluent limitations
(WQBELs), consistent with the authority in Section 301(b)(1)(C) of the
CWA. See Defenders of Wildlife v. Browner. 191 F.3d 1159 (9th Cir.
1999): see also EPA's preamble to the Phase II regulations, 64 FR
68722, 68753, 68788 (Dec 8, 1999). Accordingly, the draft general
permits contains the water quality-based effluent limitations,
expressed in terms of BMPs, which EPA has determined are necessary and
appropriate under the CWA.
EPA--Region 1 issued a final general permit to address stormwater
discharges from small MS4s on May 1, 2003. The 2003 general permit
required small MS4s to develop and implement a SWMP designed to control
pollutants to the maximum extent practicable and protect water quality.
This draft general permit builds on the requirements of the previous
general permit.
EPA views the MEP standard in the CWA as an iterative process. MEP
should continually adapt to current conditions and BMP effectiveness.
EPA believes that compliance with the requirements of this general
permit will meet the MEP standard. The iterative process of MEP
consists of a municipality developing a program consistent with
specific permit requirements, implementing the program, evaluating the
effectiveness of BMPs included as part of the program, then revising
those parts of the program that are not effective at controlling
pollutants, then implementing the revisions, and evaluating again. The
changes contained in the draft general permits reflect the iterative
process of MEP. Accordingly, the draft general permit contains more
specific tasks and details than the 2003 general permit.
II. Summary of Permit Conditions
Obtaining Authorization
In order for a small MS4 to obtain authorization to discharge, it
must submit a complete and accurate NOI containing the information in
Appendix E of the draft general permit. The NOI must be submitted
within 90 days of the effective date of the final permit. The effective
date of the final permit will be specified in the Federal Register
publication of the Notice of Availability of the final permit. A small
MS4 must meet the eligibility requirements of the general permit found
in Part 1.2 and Part 1.9 prior to submission of its NOI. A small MS4
will be authorized to discharge under the permit upon the effective
date of coverage. The effective date of coverage is upon receipt of
written notice by EPA following a public notice of the NOI.
The draft general permit provides interim coverage for permittees
covered by the previous permit and whose coverage was effective upon
the expiration of that permit (May 1, 2008). For those discharges
covered by the pervious permit, authorization under the previous permit
is continued automatically on an interim basis for up to 180 days from
the effective date of the final permit. Interim coverage will terminate
earlier than the 180 days when a complete and accurate NOI has been
submitted by the small MS4 and coverage is either granted or denied. If
a permittee was covered under the previous permit and submitted a
complete and accurate NOI in a timely manner, and notification of
authorization under the final permit has not occurred within 180 days
of the effective date of the final permit, the permittee's
authorization under the previous permit can be continued beyond 180
days on an interim basis. Interim coverage will terminate after
authorization under this general permit, an alternative permit, or
denial of permit coverage.
EPA--Region 1 will provide an opportunity for the public to comment
on each NOI that is submitted. Following the public notice, EPA--Region
1 will authorize the discharge, request additional information, or
require the small MS4 to apply for an alternative permit or individual
permit.
Water Quality Based Effluent Limitations
The draft general permit includes provisions to ensure that
discharges do not cause or contribute to exceedances of water quality
standards. The provisions in Part 2.1 of the general permit constitute
the water quality based effluent limitations of the permit. The purpose
of this part of the permit is to establish the broad inclusion of
water-quality based effluent limitations for those discharges requiring
additional controls in order to achieve water quality standards and
other water quality-related objectives, consistent with 40 CFR
122.44(d). The water quality-based effluent limitations supplement the
permit's non-numeric effluent limitations. The non-numeric effluent
limitation requirements of this permit are expressed in the form of
control measures and BMPs (see Part 2.3 of the general permit).
Non-Numeric Effluent Limitations
If EPA has not promulgated effluent limitations for a category of
discharges, or if an operator is discharging a pollutant not covered by
an effluent guideline, permit limitations may be based on the best
professional judgment (BPJ) of the agency or permit writer. The BPJ
limits in this permit are in the form of non-numeric control measures,
commonly referred to as best management practices (BMPs). Non-
[[Page 78788]]
numeric limits are employed under limited circumstances, as described
in 40 CFR 122.44(k). EPA has interpreted the CWA to allow BMPs to take
the place of numeric effluent limitations under certain circumstances.
40 CFR 122.44(k) provides that permits may include BMPs to control or
abate the discharge of pollutants when: ``(1) [a]uthorized under
section 304(e) of the CWA for the control of toxic pollutants and
hazardous substances from ancillary industrial activities; (2)
[a]uthorized under section 402(p) of the CWA for the control of
stormwater discharges; (3) [n]umeric effluent limitations are
infeasible; or (4) [t]he practices are reasonable to achieve effluent
limitations and standards or to carry out the purposes and intent of
the CWA.'' The permit regulates stormwater discharges using BMPs. Due
to the variability associated with stormwater, EPA believes the use of
BMPs is the most appropriate method to regulate discharges of
stormwater from municipal systems in accordance with the above
referenced regulation.
The draft permit requires small MS4s to continue to control
stormwater discharges for the municipal system in a manner designed to
reduce the discharge of pollutants to the maximum extent practicable
and to protect water quality. The small MS4s are required to implement
a SWMP consisting of control measures. These control measures include
the following: Public Education and Outreach, Public Participation,
Illicit Discharge Detection and Elimination, Construction Stormwater
Management, Stormwater Management in New Development and Redevelopment,
and Good Housekeeping in Municipal Operations. Implementation of the
SWMP involves the identification of BMPs and measurable goals for the
BMPs. The draft permit identifies the objective of each control
measure. The small MS4 must implement the control measures required by
the general permit and document actions in the SWMP demonstrating
progress towards achievement of the objective of the control measure.
The permit also contains requirements for outfall monitoring associated
with illicit detection and elimination, recordkeeping and reporting.
III. Other Legal Requirements
A. Environmental Impact Statement Requirements
The draft general permit does not authorize discharges from any new
sources as defined under 40 CFR 122.2. Therefore, the National
Environmental Policy Act, 33 U.S.C. sections 4321 et seq., does not
apply to the issuance of this general NPDES permit.
B. Section 404 Dredge and Fill Operations
This draft permit does not constitute authorization under 33 U.S.C.
Section 1344 (Section 404 of the Clean Water Act) of any stream
dredging or filling operations.
C. CWA 401 Water Quality Certification
Section 401(a)(1) of the CWA states that EPA may not issue a permit
until a certification is granted or waived in accordance with that
section of the CWA by the state in which the discharge originates or
will originate. The 401 certification affirms that the conditions of
the general permit will be protective of the water quality standards
and satisfy other appropriate requirements of state law. The 401
certification may also include additional conditions that are more
stringent than those in the draft permit that the state finds necessary
to meet the requirements of appropriate laws. Regulations governing
state certification are set forth in 40 CFR 124.53 and 124.55.
Concurrent with the public notice of this general permit, EPA--Region 1
will request 401 water quality certifications.
Section 401(a) of the CWA states in part that in any case where a
state, interstate agency or tribe has no authority to issue a water
quality certification, EPA shall issue such certification. At this
time, none of the tribes in Connecticut or Rhode Island have approved
water quality standards or Section 401 authority for the purpose of
regulating water resources within the border of Indian lands pursuant
to Section 518(e) of the CWA. As provided for under Section 401(a)(1)
of the CWA, EPA--Region 1 will provide certification of this permit for
tribal lands.
D. Executive Order 12866
EPA has determined that this draft general permit is not a
``significant regulatory action'' under the terms of Executive Order
(EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject
to review under the EO.
E. Paperwork Reduction Act
The information collection requirements of this draft permit were
previously approved by the Office of Management and Budget (OMB) under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
and assigned OMB control number 2040-0086 (NPDES permit application)
and 2040-0004 (Monitoring Reports).
F. Regulatory Flexibility Act
EPA's current guidance, entitled ``Federal Guidance for EPA Rule
Writers: Regulatory Flexibility Act [RFA] 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, EPA concludes that since this general permit affects less
than 100 small entities, it does not have a significant economic impact
on a substantial number of small entities. The RFA defines a ``small
governmental jurisdiction'' as the government of a city, county, town,
township, village, school district, or special district with a
population of less than 50,000.
G. 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 tribal, state, and local governments
and the private sector. The UMRA defines ``regulatory actions'' to
include proposed or final rules with Federal mandates. The draft permit
proposed today, however, is not a ``rule'' and is therefore not subject
to the requirements of UMRA.
Dated: December 16, 2008.
Robert W. Varney,
Regional Administrator, EPA New England.
[FR Doc. E8-30549 Filed 12-22-08; 8:45 am]
BILLING CODE 6560-50-P