[Federal Register Volume 61, Number 155 (Friday, August 9, 1996)]
[Rules and Regulations]
[Pages 41698-41699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20228]



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Part III





Environmental Protection Agency





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40 CFR Part 122



Interpretative Policy Memorandum on Reapplication Requirements for 
Municipal Separate Storm Sewer Systems; Final Rule

  Federal Register / Vol. 61, No. 155 / Friday, August 9, 1996 / Rules 
and Regulations  

[[Page 41698]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 122

[FRL-5533-7]


Interpretative Policy Memorandum on Reapplication Requirements 
for Municipal Separate Storm Sewer Systems

AGENCY: Environmental Protection Agency (EPA).

ACTION: Policy statement; interpretation.

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SUMMARY: By today's notice EPA announces federal policy, signed by 
Robert Perciasepe, Assistant Administrator for Water, on May 17, 1996, 
regarding application requirements for renewal or reissuance of 
National Pollutant Discharge Elimination System (NPDES) permits for 
municipal separate storm sewer systems (MS4s). Today's action responds 
to requests from municipalities and NPDES permit writers for 
clarification about regulations which do not appear to address 
reapplication requirements, i.e., permit reissuance. Today's notice 
explains that MS4 permit applicants and NPDES permit writers have 
considerable discretion to customize appropriate and streamlined 
reapplication requirements on a case-by-case basis, specifically, by 
using the fourth year annual report as the principal reapplication 
document.

EFFECTIVE DATE: This policy is effective May 17, 1996.

FOR FURTHER INFORMATION CONTACT: Marilyn Fonseca, Office of Wastewater 
Management, MC-4203, U.S. Environmental Protection Agency, 401 M Street 
SW., Washington, DC 20460, (202)-260-0592, e-mail: 
Fonseca.M[email protected]

SUPPLEMENTARY INFORMATION: The text of this policy is as follows:

Municipal Separate Storm Sewer System Permit Reapplication Policy

    The 1987 amendments to the Clean Water Act added Section 402(p) 
which directed the Environmental Protection Agency to establish 
regulations governing storm water discharges under the National 
Pollutant Discharge Elimination System (NPDES) program. Early in the 
program, Congress specifically required NPDES permits for municipal 
separate storm sewer systems (MS4s) serving populations over 100,000. 
In response, EPA promulgated regulations in 1990 that established 
permit application requirements for MS4s that serve populations over 
100,000. MS4 permits have since been drafted and finalized for many 
municipal systems. A number of MS4 permits are due to expire and must 
be reissued.
    EPA is providing this policy memorandum to outline permit 
reapplication requirements for regulated MS4s. There are three 
components to EPA's reapplication policy. First, EPA is not requiring 
that the process used for part 1 and 2 of the initial permit 
application be repeated in full. Second, EPA has identified basic 
information that should be included in every reapplication package. 
Finally, EPA is seeking to improve existing MS4 storm water management 
programs by using information and experience municipalities have gained 
during the previous permit term.

Is a Permit Reapplication Necessary?

    Yes. The requirement that all point source discharges authorized by 
a NPDES permit must reapply is well established at 40 CFR 122.41(b) and 
122.46(a):

    Duty to reapply. If the permittee wishes to continue an activity 
regulated by this permit after the expiration date of this permit, 
the permittee must apply for and obtain a new permit.
    Duration of permits. NPDES permits shall be effective for a 
fixed term not to exceed 5 years.

    The reapplication requirement is also found at 40 CFR 122.21(d):

    Duty to reapply. . . . All other permittees with currently 
effective permits shall submit a new application 180 days before the 
existing permit expires.

    Therefore, all regulated Phase I MS4s need to participate in a 
permit reapplication process.
    Where a complete reapplication package has been submitted as 
directed by the permit authority, conditions of an expired MS4 permit 
will continue until the effective date of a new permit, as stated in 40 
CFR 122.6(a) and (b):

    (a) EPA permits. When EPA is the permit-issuing authority, the 
conditions of an expired permit continue in force . . . until the 
effective date of a new permit . . . and (b) Effect. Permits 
continued under this section remain fully effective and enforceable.

Are Initial MS4 Permit Application Requirements Applicable To Permit 
Reapplication?

    No. The scope of the initial permit application requirements was 
comprehensive and regulated MS4s invested considerable resources to 
develop these applications. The initial applications have laid the 
foundation for the long-term implementation of MS4 storm water 
management programs. EPA believes reapplications should focus on 
maintenance and improvement of these programs.
    The MS4 permit application requirements at 40 CFR 122.26(d)(1) and 
(2) apply to the first round permit applications required of large and 
medium MS4s. The permit application deadline regulations in 40 CFR 
122.26(e) (3) & (4) clearly reflect the ``one time'' nature of the Part 
I & II application requirements for large and medium MS4s. EPA has not 
promulgated regulations applicable to reapplication for MS4s. 
Requirements to demonstrate adequate legal authority, perform source 
identification (e.g., identify major outfalls and facility inventory), 
characterize data, and develop a storm water management program should 
have been addressed in the initial application phase. Therefore, to 
request the same information again, where it has already been provided 
and has not changed, would be needlessly redundant. Thus, as a 
practical matter, most first-time permit application requirements are 
unnecessary for purposes of second round MS4 permit application.

What Basic Information Must Be Submitted for an MS4 Permit 
Reapplication?

    EPA is committed to allowing permitting authorities to develop 
flexible reapplication requirements that are site-specific. In the 
absence of reapplication regulations specific to MS4s, minimum 
reapplication requirements are drawn from the generic NPDES permit 
application regulations at 40 CFR 122.21(f). EPA regulations suggest 
the following basic information be included as part of any permit 
reapplication:

--name and mailing address(es) of the permittee(s) that operate the 
MS4, and
--names and titles of the primary administrative and technical contacts 
for the municipal permittee(s).

    In addition, in the reapplication, municipalities should identify 
any proposed changes or improvements to the storm water management 
program and monitoring activities for the upcoming five year term of 
the permit, if those proposed changes have not already been submitted 
pursuant to 40 CFR 122.42(c). [A requirement to submit proposed changes 
to the storm water management program is specified in the annual 
reporting requirements in 40 CFR 122.42(c)(2).] EPA encourages 
permitting authorities to make use of the fourth year annual report as 
the basic permit reapplication package.

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    Changes to the storm water management program may be justified due 
to the availability of new information on the relative magnitude of a 
problem or new data on water quality impacts of the storm water 
discharges. Municipalities may also propose to de-emphasize some 
program components and strengthen others, based on the experience 
gained under the first permit. Proposed elimination of a program 
component might be justified upon permit renewal; for example, when a 
component is no longer a problem area (i.e., all detention basins have 
been retrofitted) or when a different water quality program would serve 
the same goals.
    The components of the original storm water management program which 
are found to be effective should be continued and made an ongoing part 
of the proposed new storm water management program. Such components may 
include:

--continued emphasis on public education programs, particularly 
programs on proper disposal of waste oil and household hazardous waste 
and pesticide application;
--continued, if not greater, emphasis on addressing impacts of new 
development/construction;
--proper storm design criteria for all new developments;
--retrofitting and/or upgrading of the existing storm sewer system 
according to a priority system;
--more frequent maintenance of storm sewer systems and storm water 
treatment systems;
--coordination with adjacent MS4s on monitoring or other efforts; and
--using a watershed approach to storm water management.

    The accumulated annual report information as outlined in 40 CFR 
122.42(c) should be evaluated and, to the extent applicable, be 
incorporated by reference into the reapplication package.
    To reiterate, MS4s may use the fourth year annual report, which 
emphasizes proposed changes to the storm water management program, with 
the additional required basic information, as the MS4 permit 
reapplication. Changes to the storm water management program should be 
jointly developed by the permitting authority and the permit applicant. 
In this regard, we urge permit issuance authorities and permittees to 
work together to assure that the permit reapplication is complete and 
addresses all appropriate issues. The permitting agency may request 
additional technical information be submitted in the reapplication. 
NPDES permitting authorities, therefore, can exercise their information 
gathering authority under CWA Section 308, or analogous State 
provisions to complete the permit reapplication on a case-by case 
basis, as appropriate.

What Additional Information Should Be Considered for a Reapplication?

    EPA also recommends the following information be provided by 
reapplicants to the permitting authority, as outlined in 40 CFR 
122.26(d)(1)(iv)(C):

--identification of any previously unidentified water bodies that 
receive discharges from the MS4, and
--a summary of any known water quality impacts on the newly identified 
receiving waters (based on best available data).

    In addition, EPA recommends the following information be provided 
to the permitting authority as well:

--a description of changes in co-applicants since issuance of initial 
MS4 permit, and
--identification number of the existing NPDES MS4 permit.

    Further, EPA encourages permitting authorities to work with 
permittees to determine if storm water monitoring efforts are 
appropriate and useful. For example, during the previous permit term, 
municipalities may have found that their monitoring program was not 
fully successful in characterizing the nature and extent of storm water 
problems. Reapplication is an appropriate time for MS4s to evaluate 
their monitoring program and propose changes to make the program more 
appropriate and useful. To accomplish this, municipalities may wish to 
consider using monitoring techniques other than end-of-the pipe 
chemical-specific monitoring, including habitat assessments, 
bioassessments and/or other biological methods.
    Permitting authorities should incorporate any such new information, 
together with assembled materials from the initial application and the 
existing permit, to form the administrative record for any reissued MS4 
permits. Such administrative records should be made publicly available 
as part of the process to reissue the permit.

    Dated: June 28, 1996.
Michael B. Cook,
Director, Office of Wastewater Management.
[FR Doc. 96-20228 Filed 8-8-96; 8:45 am]
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