[Federal Register: February 26, 2009 (Volume 74, Number 37)]
[Notices]
[Page 8789-8791]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26fe09-52]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-8772-1; 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 final permit issuance of the 2008 Multi-Sector
General Permit for Alaska, Idaho, federal facilities in Washington, and
Indian Country in the states of Idaho, Oregon and Washington.
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SUMMARY: EPA previously announced the issuance of the NPDES general
permit for stormwater discharges from industrial activity, also
referred to as the Multi-Sector General Permit (MSGP), in the Federal
Register of September 29, 2008 (73 FR 56572). Today's action provides
notice of final MSGP issuance for the states of Alaska and Idaho; for
federal facilities in Washington; and for Indian Country in the states
of Idaho, Oregon and Washington.
DATES: Today's action is effective on February 26, 2009. 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 previous version of the MSGP on October 30, 2005. In accordance
with 40 CFR Part 23, this permit shall be considered issued for the
purpose of judicial review on March 12, 2009. 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. Deadlines for
submittal of Notices of Intent from facilities located in the areas
listed above are provided as part of this action.
FOR FURTHER INFORMATION CONTACT: For information about the issuance of
the MSGP in Alaska; Idaho; for federal facilities in Washington; and in
Indian Country in Idaho, Oregon and Washington, contact Misha Vakoc,
EPA Region 10, Office of Water and Watersheds at (206) 553-6650 or
vakoc.misha@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action 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
Lubricant 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
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 this final permit and fact sheet are
available at EPA's stormwater 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
to 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
[[Page 8790]]
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.
II. Background
EPA proposed the MSGP for public comment on December 1, 2005 (70 FR
72116). On September 29, 2008 (73 FR 56572), EPA announced the
availability of the MSGP for industrial facilities located in the
States of Massachusetts, New Hampshire, New Mexico; the Commonwealth of
Puerto Rico; the District of Columbia; the Territories of Johnson
Atoll, American Samoa, Guam, the Commonwealth of Northern Mariana
Islands, Midway and Wake Islands; Indian Country in Alaska, Arizona,
Connecticut, Massachusetts, Louisiana, Michigan, Minnesota, Nevada, New
Mexico, Oklahoma, Texas, Wisconsin, Rhode Island; for certain
facilities in the states of Oklahoma and Texas not on Indian Country
lands; and for Federal facilities located in Delaware and Vermont.
EPA Region 10 did not issue the final MSGP for the States of Alaska
and Idaho; for Federal facilities in Washington; and for Indian Country
in the States of Idaho, Oregon and Washington because it had not yet
received the Clean Water Act 401 certifications. Now that EPA Region 10
has received the required Clean Water Act 401 certifications, it is
issuing the final MSGP, as described more fully below, in the States of
Alaska and Idaho; for Federal facilities in Washington; and for Indian
Country in the States of Idaho, Oregon and Washington.
The MSGP provides coverage for 29 sectors of industrial point
source discharges that occur in areas not covered by an approved State
NPDES program. EPA summarized the MSGP permit conditions, as well as
changes from the previous version of the MSGP, in the September 29,
2008, Federal Register notice.
Since September 2008, EPA received final certifications under the
Clean Water Act Section 401 from the States of Alaska and Idaho; the
Lummi Tribe, the Confederated Tribe of the Umatilla Indians; and the
Puyallup Tribe of Indians. Accordingly, permit coverage under the MSGP
is now available to dischargers 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.
Pursuant to CWA section 401(d), the limitations and requirements
contained in these certifications are now conditions of the MSGP and
are included in Part 9.10 of the permit. In addition, EPA has specified
the deadline for submittal of Notices of Intent from dischargers in
these areas in Table 9.10-1.
The MSGP effective date is February 26, 2009. Operators of
facilities discharging within the areas listed above must submit their
Notice of Intent to EPA no later than May 27, 2009. The permit and the
authorization to discharge will expire at midnight on September 29,
2013. As previously noted, the complete text of the updated MSGP can be
obtained through EPA's Web site at http://www.epa.gov/npdes/stormwater/
msgp.
Permit Appeal Procedures
In accordance with 40 CFR part 23, this permit shall be considered
issued for the purpose of judicial review on March 12, 2009.
III. 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
[[Page 8791]]
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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IV. 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.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: January 29, 2009.
Michael A. Bussell,
Director, Office of Water and Watersheds, EPA Region 10.
[FR Doc. E9-4152 Filed 2-25-09; 8:45 am]
BILLING CODE 6560-50-P