[Federal Register Volume 67, Number 184 (Monday, September 23, 2002)]
[Notices]
[Pages 59503-59519]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23989]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-02-014-7378-6]


Final Reissuance of NPDES General Permit for Construction 
Dewatering Activity Discharges in the States of Massachusetts and New 
Hampshire

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of final NPDES general permits--MAG070000 and NHG070000.

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SUMMARY: The Director of the Office of Ecosystem Protection, 
Environmental Protection Agency-New England (EPA-NE), is issuing the 
final National Pollutant Discharge Elimination System (NPDES) general 
permit for construction dewatering activity discharges to certain 
waters of the States of Massachusetts and New Hampshire and for Indian 
Country lands located in Massachusetts for the purpose of reissuing the 
general permit that expired on May 1, 2001. This NPDES general permit 
establishes Notice of Intent (NOI) requirements, effluent limitations, 
standards, prohibitions and management practices for construction 
dewatering activity discharges. Construction dewatering activity is 
defined as pumped or drained discharges of groundwater and/or 
stormwater from excavations or other

[[Page 59504]]

points of accumulation association with a construction activity.
    Owners and/or operators of sites that discharge groundwater and/or 
stormwater from construction dewatering activities, including those 
currently authorized to discharge under the expired general permit, 
will be required to submit an NOI to EPA-NE to be covered by the 
appropriate general permit and will receive a written notification from 
EPA-NE of permit coverage and authorization to discharge under the 
general permit. The limitations on coverage are discussed in detail 
under Section C.1.c. and the eligibility requirements are discussed in 
detail under Section C.2.b. of the permit. The reader is strongly urged 
to go to those sections before reading further. This general permit 
does not cover new sources as defined under 40 CFR 122.2

DATES: The general permit shall be effective on September 23, 2002, and 
will expire five years from the effective date.

ADDRESSES: Notices of Intent to be authorized to discharge under the 
reissued permit should be sent to EPA-NE, Office of Ecosystem 
Protection (CMU), 1 Congress Street, Suite 1100, Boston, Massachusetts 
02114-2023. The submittal of other information required under the 
permit or individual permit applications should also be sent to the 
above address. See also Part 1.D. of the general permit for State 
Agency notification requirements and mailing addresses.

FOR FURTHER INFORMATION CONTACT: Additional information concerning the 
final permit may be obtained between the hours of 9 a.m. and 5 p.m. 
Monday through Friday excluding holidays from: Austine Frawley, Office 
of Ecosystem Protection, Environmental Protection Agency, 1 Congress 
Street, Suite 1100, Boston, MA 02114-2023; telephone: 617-918-1065; e-
mail: [email protected].

SUPPLEMENTARY INFORMATION: The Final NPDES General Permit may be viewed 
over the Internet via the EPA-NE web site www.epa.gov/region01/topics/water/permits.html. To obtain a hard copy of the document, please call, 
e-mail or write to Ms. Frawley at the addresses listed above. The final 
general permit includes FACT SHEET AND SUPPLEMENTARY INFORMATION 
sections that set forth principal facts and the significant factual, 
legal and policy questions considered in the development of the permit. 
A reasonable fee may be charged for copying requests.

Table of Contents

Changes From Previous Permit

Fact Sheet and Supplementary Information

I. Introduction
II. Coverage of General Permits
III. Exclusions
IV. Permit Basis and Other Conditions of the General NPDES Permit
    A. Types of Discharge
    B. Effluent Limitations
    C. Antidegradation Provisions
    D. Monitoring and Reporting Requirements
    E. Endangered Species Act
    F. Essential Fish Habitat
    G. Standard Permit Condition
    H. State (401) Certifications
    I. The Coastal Zone Management Act
    J. Environmental Impact Statement Requirements
    K. National Historic Preservation Act of 1966, 15 U.S.C. 470 et 
seq.
    L. Section 404 Dredge and Fill Operations
V. Summary of Response to Comments
VI. Other Legal Requirements
    A. Executive Order 12866
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act

Part I--Final General Permits Under the National Pollutant Discharge 
Elimination System (NPDES)

A. Massachusetts General Permit No. MAG070000
B. New Hampshire General Permit, Permit No. NHG070000
C. Common Elements For All Permits
    1. Conditions of the General NPDES Permit
    a. Geographic Area
    b. Exclusions
    c. Limitations on Coverage
    d. Notification by Permitees
2. Administrative Aspects
    a. Request to be Covered
    b. Eligibility to Apply
    c. Continuation of this General Permit After Expiration
D. Monitoring and Reporting
E. Additional General Permits Conditions

Part II--Standard Conditions

Changes From the Previous Permit

    [sbull] General permits for the States of Massachusetts and New 
Hampshire are presented separately.
    [sbull] EPA-NE has modified slightly the requirements to obtain 
permit coverage to enhance the protection of historic properties so 
that the requirements are consistent with the September 30, 1998 
modifications to the National Historic Preservation Act. The revised 
requirements are consistent with the requirements for coverage under 
other Regionally-issued NPDES General Permits.
    [sbull] EPA-NE has modified the requirements to obtain permit 
coverage to enhance the protection of listed species in response to 
comments received by the Agency from Fish and Wildlife Services and the 
National Marine Fisheries Services. The revised requirements are 
consistent with the requirements for coverage under other Regionally-
issued NPDES General Permits.
    [sbull] There is no General Permit for the State of Maine. EPA 
delegated NPDES permitting authority to the State of Maine on January 
12, 2001, except for facilities located in Indian country. At this 
point NPDES permitting under the Clean Water Act is temporarily 
suspended in Indian country pursuant to section 402(c) of the Act; 
therefore, the general permit is not available to dischargers in Indian 
country in the State of Maine. See 66 FR 112792-93 (2/28/01).
    [sbull] The State of New Hampshire does not allow discharges to 
Class A waters under this general permit.
    [sbull] Notification by Permittees, Geographic Area and 
Administrative Aspects (request to be covered and eligibility to apply) 
transferred from Fact Sheet and Supplemental Information to Part I, 
Permit Section I.C.
    [sbull] A provision has been added to the permit, in the event that 
the permit is not reissued prior to its expiration date, that will 
administratively continue the permit beyond its expiration date in 
accordance with the Administrative Procedures Act, and the permittee 
submits a new Notice of Intent. See Part I.C.2.c. of the final permit.
    [sbull] All States--commingling of effluent from a construction 
dewatering facility is allowed as long as the effluent can be monitored 
before it mixes with other streams of wastewater.

Fact Sheet and Supplementary Information

I. Introduction

    The Director of the Office of Ecosystem Protection, EPA-New 
England, is issuing final general permits for the discharge of 
groundwater and stormwater from construction dewatering activities to 
certain waters of the States of Massachusetts and New Hampshire. This 
document contains Part I, the final general NPDES permits, and Part II, 
Standard Conditions.

II. Coverage of General Permits

    Section 301(a) of the Clean Water Act (the Act) provides that the 
discharge of pollutants is unlawful except in accordance with a 
National Pollutant Discharge Elimination System (NPDES) permit unless 
such a discharge is otherwise authorized by the Act. Although such 
permits are generally issued to individual discharges, EPA's 
regulations authorize the issuance of ``general permits'' to categories 
of

[[Page 59505]]

discharges (see 40 CFR 122.28). EPA may issue a single, general permit 
to a category of point sources located within the same geographic area 
whose discharges warrant similar pollution control measures.
    A. The Director of an NPDES permit program is authorized to issue a 
general permit if there are a number of point sources operating in a 
geographic area that:
    1. Involve the same or substantially similar types of operations:
    2. Discharge the same types of wastes;
    3. Require the same effluent limitations or operating conditions;
    4. Require the same or similar monitoring requirements; and
    5. In the opinion of the Director, are more appropriately 
controlled under a general permit than under individual permits.
    Authorization under the general permit shall require prior 
submittal of certain facility information. Upon receipt of all required 
information, the permit issuing authority may allow or disallow 
coverage under the general permit.
    B. The similarity of the discharges prompted EPA to issue the May 
1, 1996 general permit. When reissued, this permit will enable 
facilities covered under the expired general permit to maintain 
compliance with the Act; will extend environmental and regulatory 
controls to new discharges; and, will avoid a backlog of individual 
permit applications. The re-issuing of this general permit in New 
Hampshire and Massachusetts is warranted by the similarity of 
environmental conditions; State regulatory requirements applicable to 
the discharges and receiving waters; and, the technology employed.
    Violations of a condition of a general permit constitute a 
violation of the Clean Water Act and subjects the discharger to the 
penalties in section 309 of the Act.

III. Exclusions

    Discharges of groundwater and stormwater associated with the 
construction of single family homes are not covered under this permit.
    This permit does not authorize the discharge of stormwater 
associated with construction sites which disturb greater than 5 acres 
of land. These sites are required to have a separate NPDES permit for 
stormwater discharges in accordance with 40 CFR 122.26(b)(14)(x).
    Discharges of stormwater runoff from construction sites less than 5 
acres, which is not pumped or drained from excavations associated with 
construction activity, are not covered under this NPDES permit. These 
sites are required to comply with 40 CFR 122.26(b)(5).
    The State of New Hampshire does not allow discharges to Class A 
waters under this general permit.
    EPA has determined that this general permit will not be available 
to ``New Source'' dischargers as defined in 40 CFR 122.2 due to the 
site specific nature of the environmental review required by the 
National Environmental Policy Act of 1969 (NEPA). 33 U.S.C. 4321 et 
seq. for those facilities. ``New Sources'' must comply with New Source 
Performance Standards (NSPS) and are subject to the NEPA process in 40 
CFR 6.600. Consequently EPA has determined that it would be more 
appropriate to address ``New Sources'' through the individual permit 
process. (``New Sources'' should not be confused with ``New 
Dischargers'', which are eligible for general permit coverage. 
Definitions may be found at 40 CFR 122.2).
    EPA has determined that this general permit will not be available 
for discharge(s) into impaired waters on the Federal Clean Water Act 
section 303(d) list which are not attaining state water quality 
standards. Applicants may call EPA-NE or their State Agency for listing 
of impaired waters. See Final Permit, Section D, Monitoring and 
Reporting, for Agency contact information.
    Any owner or operator authorized by a general permit may request to 
be excluded from coverage of a general permit by applying for an 
individual permit. This request may be made by submitting a NPDES 
permit application together with reasons supporting the request. The 
Director may also require any person authorized by a general permit to 
apply for and obtain an individual permit. Any interested person may 
petition the Director to take this action. However, individual permits 
will not be issued for sources covered by the general permit unless it 
can be clearly demonstrated that inclusion under the general permit is 
inappropriate. The Director may consider the issuance of individual 
permits when:
    1. The discharger is not in compliance with the terms and 
conditions of the general permit;
    2. A change has occurred in the availability of demonstrated 
technology or practices for the control or abatement of pollutants 
applicable to the point source;
    3. Effluent limitations guidelines are subsequently promulgated for 
the point sources covered by the general NPDES permit;
    4. A Water Quality Management Plan or Total Maximum Daily Load 
(TMDL) containing requirements applicable to such point sources is 
approved;
    5. Circumstances have changed since the time of the request to be 
covered so that the discharger is no longer appropriately controlled 
under the general permit, or either a temporary or permanent reduction 
or elimination of the authorized discharge is necessary;
    6. The discharge(s) is a significant contributor of pollution or in 
violation of State Water Quality Standards for the receiving water.
    In accordance with 40 CFR 122.28(b)(3)(iv), the applicability of 
the general permit is automatically terminated on the effective date of 
the individual permit.

IV. Permit Basis and Other Conditions of the General NPDES Permit

A. Types of Discharge

    Under this general permit, owners and operators of construction 
dewatering sites in Massachusetts and New Hampshire may be granted 
authorization to discharge groundwater and stormwater generated 
wastewaters into waters of the respective states. Discharges authorized 
under this general permit must be treated in a settling basin or other 
treatment system designed to remove total suspended solids unless the 
State agency specifically waives that requirement for the individual 
applicant.

B. Effluent Limitations

    1. Statutory Requirements: Section 301(a) of the Clean Water Act 
(CWA or the Act), 33 U.S.C. 1311(a), makes it unlawful to discharge 
pollutants to waters of the United States without a permit. Section 402 
of the Act, 33 U.S.C. 1342, authorizes EPA to issue NPDES permits 
allowing discharges that will meet certain requirements, including CWA 
sections 301, 304, and 401 (33 U.S.C. 1331, 1314, and 1341). Those 
statutory provisions state that NPDES permits must include effluent 
limitations requiring authorized discharges to: (1) Meet standards 
reflecting specified levels of technology-based treatment requirements; 
(2) comply with State Water Quality Standards; and (3) comply with 
other state requirements adopted under authority retained by states 
under CWA Section 510, 33 U.S.C. 1370.
    EPA is required to consider technology and water quality 
requirements when developing permit limits. 40 CFR part 25 subpart A 
sets the criteria and standards that EPA must use to determine which 
technology-based requirements, requirements under section 301(b) of the 
Act and/or

[[Page 59506]]

requirements established on a case-by-case basis under section 
402(a)(1) of the Act, should be included in the permit.
    The Clean Water Act requires that all discharges, at a minimum, 
must meet effluent limitations based on the technology-based treatment 
requirements for dischargers to control pollutants in their discharge. 
Section 301(b)(1)(A) of the Act requires the application of Best 
Practicable Control Technology Currently Available (BPT) with the 
statutory deadline for compliance being July 1, 1977, unless otherwise 
authorized by the Act. Section 301(b)(2) of the Act requires the 
application of Best Conventional Control Technology (BCT) for 
conventional pollutants, and Best Available Technology Economically 
Achievable (BAT) for non-conventional and toxic pollutants. The 
compliance deadline for BCT and BAT is as expeditiously as practicable 
but in no case later than three years after the date such limitations 
are promulgated and in no case later that March 31, 1989.
    2. Technology-based Effluent Limitations: EPA has not promulgated 
National Effluent Guidelines for construction dewatering discharges. 
Therefore, as provided in section 402(a)(1) of the Act, EPA has 
determined to establish technology-based limitations in this general 
permit utilizing Best Professional Judgement (BPJ) to meet the above 
stated criteria for BAT/BCT described in section 304(b) of the Act. 
Accordingly monthly average and maximum daily Total Suspended Solids 
(TSS) limitations of 50 mg/l and 100 mg/l, respectively, are 
established based upon best professional judgment pursuant to section 
402(a)(1) of the CWA. The limitations in the final permit are also the 
same as the limitations in the existing permit in accordance with the 
anti-backsliding requirements found in 40 CFR 122.44(1).
    EPA believes that for most discharges these limits are sufficient 
to achieve water quality standards. Coverage under the general permit 
will not be granted for those discharges which EPA or the applicable 
state believe a more stringent water quality-based TSS limit is needed.
    3. Water Quality Based Effluent Limitations: Under section 
301(b)(1)(C) of the Act, discharges are subject to effluent limitations 
based on water quality standards. Receiving stream requirements are 
established according to numerical and narrative standards adopted 
under state and/or federal law for each stream use classification. 
Section 401 of the CWA requires that EPA obtain State certification 
which ensures that all water quality standards and other appropriate 
requirements of state law will be satisfied. Regulations governing 
State certification are set forth in 40 CFR 124.53 and 124.55.
    The States of Massachusetts and New Hampshire have narrative 
criteria in their water quality regulations (See Massachusetts 314 CMR 
4.05(5)(e) and New Hampshire Part Env-Ws 1703.21) that prohibits toxic 
discharge in toxic amounts. The permit does not allow for the addition 
of materials or chemicals which would produce a toxic effect to any 
aquatic life. If the States and/or EPA suspect that a discharge has a 
reasonable potential to cause or contribute to an excursion above the 
State's narrative criterion for toxicity, they may request that one 
Whole Effluent Toxicity (WET) test result and/or priority pollutant 
scan of the water to be discharged be required as part of the Notice of 
Intent, as authorized at 40 CFR 122.44(d)(1)(v).
    Water quality standards applicable to construction dewatering 
activity discharges covered by this general permit include pH and oil 
and grease for both States. The pH limits are based upon the applicable 
numeric water quality criteria in each State. The pH limits in the 
final permit are the same as the limits in the existing permit in 
accordance with the anti-backsliding requirements found in 40 CFR 
122.44(1). The oil and grease limits in the final permit are based on 
the Massachusetts narrative water quality standard of no visible sheen 
on the surface of the receiving water and the New Hampshire narrative 
water quality standard of no oil or grease in such concentrations that 
would impair any existing or designated uses of Class B waters. To 
ensure that the narrative water quality standards are protected, EPA 
has established a numeric guideline of 15 mg/l for this permit. EPA has 
historically used 15 mg/l to approximate the concentration at which a 
visible oil sheen is likely to occur. The Region believes that this 
standard is a reasonable target value and has previously imposed 
maximum daily oil and grease limits of 15 mg/l in permits at facilities 
(such as oil terminals) that have a reasonable potential for oil and 
grease discharge. At 40 CFR part 423, the technology-based guideline 
for oil and grease for Steam Electric Power Generating Point Sources 
are limited to 15 and 20 mg/l for average monthly and maximum daily 
values respectively. The oil and grease numeric limits in the final 
permit are moire stringent than the narrative limits in the existing 
permit.
    The final permit contains no other water quality based limits based 
on the assumption that the discharges to be covered under this permit 
will consist of groundwater and/or stormwater which does not contain 
pollutants in amounts which would have reasonable potential to cause or 
contribute to violations of applicable State water quality standards. 
If, based on information submitted in the Notice of Intent or on other 
available information, it is determined by EPA or the applicable State 
that this assumption is not correct, the discharger will not be granted 
coverage under the general permit.
    For those discharges which are not granted coverage under this 
permit because the discharge contains pollutants in quantities which 
represent reasonable potential to cause or contribute to violations of 
water quality standards, the discharger must apply for an individual 
NPDES permit. (EPA-New England is currently developing a general permit 
for the discharge of treated groundwater from rermediation sites. When 
this permit is available it may be an alternative to an individual 
permit). The discharger may also seek authorization for the discharge 
from an EPA On-Scene Coordinator pursuant to 40 CFR 122.3(d).

C. Antidegradation Provisions

    The conditions of the permit reflect the goal of the CWA and EPA to 
achieve and maintain water quality standards. The environmental 
regulations pertaining to the State Antidegradation Policies which 
protect the State's surface waters from degradation of water quality 
are found in the following provisions: Massachusetts Water Quality 
Standards 314 CMR Section 4.04 Antidegradation Provisions; and New 
Hampshire RSA 485-A:8, VI Part Env-Ws 1708.
    This general permit does not apply to any new or increased 
discharge to receiving waters unless the discharge is shown to be 
consistent with the State's anti-degradation policies. This 
determination shall be made in accordance with the appropriate State 
antidegradation implementation procedures for this general permit. EPA 
will not authorize discharges under the general permit until it 
receives a favorable antidegradation review and certification from the 
States. (Concurrent to the publication of this final general permit in 
the Federal Register, EPA has formally requested each State to make an 
antidegradation certification determination). The Commonwealth of 
Massachusetts will conduct antidegradation reviews for notices of 
intent to discharge, under this general permit, into Class A or SA 
waters.

[[Page 59507]]

D. Monitoring and Reporting Requirements

    Effluent limitations and monitoring requirements which are included 
in the general permit describe the requirements to be imposed on the 
facilities to be covered.
    Facilities covered by the final general permits will be required to 
prepare and keep on site, in a secure place, Discharge Monitoring 
Report (DMR) containing effluent data. The frequency of reporting is 
determined in accordance with each State's provisions (see the 
individual State permits).
    The monitoring requirements have been established to yield data 
representative of the discharge under authority of section 308(a) of 
the Act and 40 CFR 122.41(j), 122.44(i) and 122.48, and as certified by 
the State.

E. Endangered Species Act

    Background: The general permit for construction dewatering activity 
discharges contains conditions to ensure that activities regulated by 
it are protective of species that are listed under the Endangered 
Species Act (ESA) as endangered or threatened (known as ``listed 
species'') and listed species habitat that is designated under the ESA 
as ``critical habitat''. Construction dewatering activity discharges 
occur when stormwater and/or groundwater from excavations or other 
points of accumulation are pumped or drained. The discharges are not 
from industrial processes, nor do they come in contact with any raw 
material, intermediate product, waste product or finished product. The 
general permit prohibits the addition of materials or chemicals in 
amounts that would be toxic to aquatic life and it prohibits any 
discharge from violating State or Federal water quality standards. 
Further, the permit contains provisions that require toxicity testing 
if EPA or the State believes it is warranted and to require individual 
permits be issued if actual environmental conditions (including the 
preservation of endangered species) are not adequately covered by the 
general permit. Except for the species and waterways listed below, the 
effluent limitations established in the permit ensures the protection 
of human health and aquatic life and the maintenance of the receiving 
water as an aquatic habitat.
    List of Species and Waterway \1\, by County and State, Subject to 
Consultation: The Fish and Wildlife Service has requested that the 
Service review and comment on all proposed discharges that may affect 
the federally-listed endangered dwarf wedgemussel (Alsmidonta 
heterodon), in Massachusetts in the Fort River, Amherst (Hampshire 
County); the Mill River in Easthampton (Hampshire County); and the Mill 
River in Wheately (Franklin County), which is a different Mill River 
than the Easthampton Mill River; and in New Hampshire in the Ashuelot 
River in Surry to Swanzey (Cheshire County); and in the South Branch of 
the Ashuelot River in Swanzey (Cheshire County).
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    \1\ The Services have identified the areas where listed 
endangered species may be present but have not designated these 
areas as ``critical habitat''.
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    The National Marine Fisheries Service has requested that it review 
and comment on all proposed discharges that may adversely affect the 
federally-listed endangered shortnose sturgeon (Acipenser brevirostrum) 
in certain sections of the Merrimack and Connecticut River in 
Massachusetts.
    Section 7 Consultations: Section 7 of the ESA requires that Federal 
agencies consult with the Fish and Wildlife Service (FWS) or the 
National Marine Fisheries Service (NMFS) (known collectively as the 
Services) to insure that any Agency action, including the issuance of 
NPDES permits, is not likely to jeopardize the continued existence of 
any listed species or result in the destruction or adverse modification 
of critical habitat. The ESA regulations provide for two types of 
consultation, formal and informal. Informal consultation is an optional 
process that includes discussion, correspondence, etc. between the 
Services and a Federal Agency or a designated non-Federal 
representative (NFR) to determine whether a Federal action is likely to 
have an adverse effect on listed species or critical habitat. Federal 
permit applicants frequently play a key role in informal consultation. 
The ESA regulations provide for permit applicants, where designated, to 
carry out informal consultations as an NFR, which enables them to work 
directly with the Services (See 50 CFR 402.08). EPA has designated 
applicants for this construction dewatering activity discharge general 
permit a non-Federal representatives for the purpose of carrying out 
informal consultation. See Section 1.C.1.c.(2), Limitations on 
Coverage.
    Applicants with discharges that would occur along the waterways 
subject to consultation must conduct informal consultation as a non-
Federal representative and must notify both EPA-New England and the 
appropriate Service office in writing of that decision.
    Conditions to Protect Listed Species: The Region has had informal 
consultations with the Services on the adoption of this General Permit. 
The Services concur that this general permit for construction 
dewatering activity discharges is unlikely to adversely affect any 
threatened or endangered species or its critical habitat except for 
discharges to the waterways identified above (See List of Species and 
Waterways, by County and State, Subject to Consultation) where the 
dwarf wedgemussel and shortnose sturgeon, both listed species, are 
known to occur.\2\ When construction dewatering activities would occur 
along these waterways, permit coverage is not automatic. Rather, permit 
coverage is available only if the permit applicant contacts the 
Services to determine: (1) If the construction dewatering activities 
would occur in designated critical habitat; (2) if listed species are 
present in the vicinity of the project area; and, (3) whether the 
applicant's discharges and discharge related activities are likely to 
affect listed species and/or critical habitats. Coverage under the 
general permit is available only if informal consultation with the 
Services under section 7 of the Endangered Species Act has been 
concluded which addresses the effects of the applicant's construction 
dewatering activity discharges on listed species and critical habitat 
and the consultation results in a written concurrence by the Service(s) 
on a finding that the applicant's construction dewatering activity 
discharges are not likely to adversely affect listed species and 
critical habitat. Permit applicants must submit a copy of the Service's 
written concurrence with their Notice of Intent submittal. Applications 
are required to certify eligibility for coverage under the General 
Permit on their Notice of Intent Submittal (See Section 1.C.1.d, 
Notification by Permittee) and to maintain any supporting documentation 
for that determination. Permit applicants that cannot certify 
compliance with the ESA requirements, where applicable, must submit 
individual permit applications to the permitting authorities. See 
Section C.1.c., Limitations on Coverage.
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    \2\ The Service states that construction dewatering activity 
discharges located on the Connecticut River in areas where the dwarf 
wedgemussel does occur are not likely to adversely affect the 
species.
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    Services Contact Information: USFWS, New England Field Office, 70 
Commercial Street, Suite 300, Concord, NH 03301-5087; Telephone 603/
223-2541; NMFS, Northeast Region, One Blackburn Drive, Gloucester, MA 
01930-2298; Telephone: 978/281-9112.

[[Page 59508]]

F. Essential Fish Habitat

    Under the 1996 Amendments (Pub. L. 104-267) to the Magnuson-Stevens 
Fishery Conservation and Management Act (16 U.S.C. 1801 et seq. 
(1998)), EPA is required to consult with National Marine Fisheries 
Service (NMFS) if EPA's action or proposed actions that it funds, 
permits or undertakes, ``may adversely impact any essential fish 
habitat.'' 16 U.S.C. 1855(b). The Amendments broadly define ``essential 
fish habitat'' (EFH) as ``waters and substrate necessary to fish for 
spawning, breeding, feeding or growth to maturity.'' 16 U.S.C. 
1802(10). Adverse impact means any impact which reduces the quality 
and/or quantity of EFH 50 CFR 600.910(a). Adverse effects may include 
direct (e.g., contamination or physical disruption), indirect (e.g., 
loss of prey, reduction in species' fecundity) site-specific or 
habitat-wide impacts, including individual, cumulative or synergistic 
consequences of actions. Essential Fish Habitat is only designated for 
fish species for which federal Fisheries Management Plans exist. 16 
U.S.C. 1855(b)(1)(A). EFH designations for New England were approved by 
the U.S. Department of Commerce on March 3, 1999. In a letter address 
to EPA-NE and dated October 10, 2000, NMFS confirmed that for projects 
authorized through the NPDES permit process, notification for purposes 
of EFH consultation can be accomplished in the EFH Section of the 
permit fact sheet or Federal Register notice.
    Resources: The general permit is not available to any new or 
increased discharge into territorial seas, however, it does not 
specifically exclude facilities that discharge into other tidal waters. 
Therefore, our EFH assessment considers all 39 federally managed 
species with designated EFH in the coastal and inland waters of 
Massachusetts and New Hampshire. Under the expired general permit, 26 
facilities were authorized to discharge into marine waters (18 
facilities into Boston Harbor; 4 in to Quincy Bay; one each into Salem 
Harbor, Edgartown Harbor and the Atlantic Ocean in MA and NH).
    Analysis of Effects and EPA's Opinion of Potential Impacts: 
Construction dewatering activity discharges are not from an industrial 
process nor do the discharges come in contact with any raw material, 
intermediate product, waste produce or finished product. The general 
permit prohibits the addition of materials or chemicals in amounts that 
would be toxic to aquatic life. The proposed limits for this general 
permit are sufficiently stringent to assure that state water quality 
standards will be met. The effluent limitations established in this 
permit ensure protection of aquatic life and maintenance of the 
receiving water as an aquatic habitat. The Region finds that reissuance 
of the proposed general permit will not adversely affect any fish or 
shellfish currently listed with a Fisheries Management Plan or its 
habitat. EPA will seek written concurrence from the National Marine 
Fisheries Service on this assessment.
    Proposed Mitigation: Mitigation for unavoidable impacts associated 
with reissuance of the permit is not warranted at this time because it 
is EPA's opinion that impacts will be negligible if permit conditions 
are followed. Authorization to discharge under the general permit can 
be revoked if any adverse impacts to Federally managed or protected 
species or their habitats do occur either as a result of noncompliance 
or from unanticipated effects from this activity. Further, the general 
permit contains provisions that require the applicant to perform 
toxicity testing if EPA or the State believes it is warranted and/or 
require that an individual permit be issued if actual environmental 
conditions are not adequately covered by the general permit. Should new 
information become available that changes the basis for EPA's 
assessment, then consultation with NMFS under the appropriate statue(s) 
will be reinitiated.

G. Standard Permit Condition

    40 CFR 122.41 and 122.42 establish requirements which must be in 
all NPDES permits. Part II of the general permit includes these 
requirements.

H. Section (401) Certifications

    Section 401 of the CWA provides that no Federal license or permit, 
including NPDES permits, to conduct any activity that may result in any 
discharge into navigable waters shall be granted until the State in 
which the discharge originates certifies that the discharge will comply 
with the applicable provisions of sections 301, 302, 303, 306, and 307 
of the CWA. The section 401 certification process is complete in both 
the States of Massachusetts and New Hampshire. In addition, EPA and the 
Commonwealth of Massachusetts will jointly issue the final permit. For 
lands held by federally recognized tribes in Massachusetts, EPA has 
provided the necessary certification. Currently, the only federally 
recognized tribe is the Wampanoag Tribe of Gay Head (Aquinnah) on the 
Island of Martha's Vineyard.

I. The Coastal Zone Management Act

    The Coastal Zone Management Act (CZMA), 16 U.S.C. 1451 et seq., and 
its implementing regulations (15 CFR part 930) require that any 
federally licensed activity affecting a state's coastal zone be 
consistent with the enforceable policies of approved state management 
programs. In the case of general permits, EPA has the responsibility 
for making the consistency certification and submitting it to the State 
for concurrence. As EPA requested, the Executive Office of 
Environmental Affairs, Massachusetts CZM, 251 Causeway Street, Suite 
900, Boston, MA 02114; and the Office of State Planning, New Hampshire 
Coastal Program, 2\1/2\ Beacon Street, Concord, NH 03301, have reviewed 
EPA's consistency certification for the proposed general permit. Each 
State's coastal program office has confirmed to EPA that the general 
permit is consistent with its coastal zone management program.

J. Environmental Impact Statement Requirements

    The general permits do not authorize discharges from any new 
sources as defined under 40 CFR 122.2. Therefore, the National 
Environmental Policy Act, 33 U.S.C. 4321 et seq., does not apply to the 
issuance of these general NPDES permits.

K. National Historical Preservation Act of 1966, 16 U.S.C. 470 et seq

    Facilities which adversely affect properties listed or eligible for 
listing in the National Registry of Historic Places under the National 
Historic Preservation Act of 1966. 16 U.S.C. 470 et seq. are not 
authorized to discharge under this permit. Applicants must determine 
whether their construction dewatering activity discharges has the 
potential to affect a property that is either listed or eligible for 
listing on the National Register of Historic Places. Applicants must 
comply with applicable State, Tribal and local laws concerning the 
protection of historic properties and places and applicants are 
required to coordinate with the State Historic preservation Officer 
and/or Tribal Historic Preservation Officer and others regarding 
effects of their construction dewatering discharges on historic 
properties. Electronic listing of national and State Registers of 
Historic Places are maintained by the National Park Service 
(www.nr.nps.gov/nrishome.htm), the Massachusetts Historical Commission 
(www.state.ma.us/sec/mhc.) and the New Hampshire Historical Commission 
(www.state.nh.us/nhdhr). Addresses for State Historic Preservation 
Officers and

[[Page 59509]]

Tribal Historic Preservation Officer are: Judith McDonough, 
Massachusetts State Historic Preservation Officer, MA Historical 
Commission, 220 Morrissey Boulevard, Boston, MA 02125 TEL: 617/727-
8470; Fax: 617/727-5128; email: Judy. [email protected]./ma.us.; 
Matthew Vanderhoop, Tribal Historic Preservation Officer, Wampanoag 
Tribe of Gay Head (Aquinnah), 20 Black Brook Road, Aquinnah, MA 02535-
9701; Tel: 508/645-9265; FAX: 508/645-3790; and James
    d. Under Fact Sheet, Section K, National Historic Preservation Act, 
Part 1.C.1.c.(1), Limitations on Coverage-Construction Dewatering 
Activity Discharges with Effects on Historic Properties; and part 
1.C.1.d, Notification by Permittees, language is added to modify the 
requirements to obtain permit coverage to enhance the protection of 
historic properties so that the requirements are consistent with the 
requirements for coverage under EPA's Multi-Sector General Permit for 
Industrial Activities, 65 FR 64746 (October 30, 2000) and other 
Regionally-issued NPDES General permits.
    2. EPA received comments from both the Fish and Wildlife Service 
(F&WS), and the National Marine Fisheries Service (NMFS), hereafter 
referred to as the Services, in letters dated November 21, 2001 and 
March 5, 2002 respectively, on the potential impacts to federally 
listed, proposed threatened or endangered species and/or designated 
critical habitat for listed species specific to EPA's Draft NPDES 
General Permit for Construction Dewatering Activity discharges in MA 
and NH. Although EPA received the comments from the NMFS after the 
thirty day deadline period as required in the Public Notice, EPA has 
addressed their comments in the final permit under Fact Sheet, Section 
E., Endangered Species Act; Part 1.C.1.c., Limitations on Coverage; and 
part 1.C.1.d, Notification by Permittees.
    Comment: The Services stated their concern that discharges under 
the General Permit may adversely affect (1) the federally-listed 
endangered dwarf wedgemussel (Alsmidonta heterodon), in Massachusetts 
in the Fort River, Amherst (Hampshire County); the Mill River in 
Easthampton (Hampshire County); and the Mill River in Wheately 
(Franklin County), which is a different Mill River than the Easthampton 
Mill River; and in New Hampshire in the Ashuelot River in Surry to 
Swanzey (Cheshire County); and in the South Branch of the Ashuelot 
River in Swanzey (Cheshire County); and (2) the shortnose sturgeon 
(Acipenser brevirostrum) in certain sections of the Merrimack and 
Connecticut Rivers in Massachusetts. The Services requested that the 
draft permit be modified to require individual consultation on 
discharges where these species are known to occur. The Fish and 
Wildlife Service recommended that discharges that may adversely affect 
these species be excluded from the General Permit because larval and 
juvenile dwarf wedgemussels may be particularly sensitive to slight 
water quality perturbations including increased sedimentation, changes 
in pH or dissolved oxygen. The National Marine Fisheries Service 
recommended that permit coverage for discharges that may adversely 
affect these species not be automatic and that applicants with these 
discharges be required to consult with the Services.
    Response: EPA-New England reviewed the requirements to protect 
endangered species in a number of recently issued National and Regional 
general permits, including the general permits for discharges under the 
Stormwater Multi-Sector General Permit for Industrial Activities (65 FR 
64746, October 30, 2000) and Proposed NPDES General Permit to Discharge 
Storm Water Associated with Construction Activities in Indian County 
within the State of Wisconsin (www.epa.gov/r5/water). Rather than 
automatically excluding or including any discharge for coverage under 
the General Permit where listed species are known to occur, these 
permits require that an applicant meet the permit's endangered species 
eligibility criteria, implement consultation procedures, and certify 
compliance with these requirements prior to receiving coverage under 
the General Permit. If actual environmental conditions (including the 
preservation of endangered species) are not adequately covered by the 
general permit, the permits contain provisions that require an 
individual permit to be issued.
    The Region has received the Services concurrence on the following 
revised procedures to ensure compliance with the Endangered Species 
Act. Specifically, the Fact Sheet discussion and General Permit 
requirements list the specific species and waterways subject to 
consultation, based on the information provided to EPA-NE by the 
Services; provides information on the ESA Section 7 consultation 
requirements, including a provision for permit applicants, when 
designated as a non-Federal representative, to carry out informal 
consultations with the Services. EPA has designated applicants for this 
construction dewatering activity discharge general permit a non-Federal 
representative for the purpose of carrying out informal consultation 
with the Services. See also 50 CFR 402.08. Applicants who choose NOT to 
conduct informal consultation with the services on ESA requirements, 
where applicable, must submit an individual permit application to the 
permitting authorities.
    The general permit states that when construction dewatering 
activities would occur in waterways subject to consultation, permit 
coverage is available only if: (1) The applicant contacts the Service 
to determine if the discharges are likely to occur in designated 
critical habitat and/or if listed species are present in the vicinity 
of the project area; and (2) informal consultation with the Services 
has been concluded and results in a written concurrence by the Services 
that the discharge is not likely to adversely affect listed species and 
critical habitat. Lastly, to be eligible for permit coverage under the 
general permit, applicants are required to submit a copy of the 
Service's written concurrence with the Notice of Intent and to certify 
on the Notice of Intent that they are in compliance with the permit's 
endangered species requirements. Applicants are required to maintain 
any supporting documentation used to make the eligibility 
determination.
    Regardless of the above conditions, EPA may require that a 
permittee apply for an individual NPDES permit on basis of possible 
jeopardy to species or critical habitats. Where there is concern that 
coverage for a particular discharger is not sufficiently protective of 
listed species, the Services, as well as any other interested parties, 
may petition EPA to require that the discharger obtain an individual 
NPDES permit and conduct an individual Section 7 consultation as 
appropriate.
    The recommended process allows for the broadest and most efficient 
coverage for the permittee while still providing for the most efficient 
protection of endangered species. The process will significantly reduce 
the number of dischargers that must be considered individually and 
therefore allow the Agency, the Services and the States to focus their 
resources on those discharges that are indeed likely to jeopardize 
listed species. Straightforward mechanisms such as these allow for more 
immediate access to permit coverage for most applicants and allow the 
Agencies to provide endangered species protection in a more expeditious 
manner.

[[Page 59510]]

VI. Other Legal Requirements

A. Executive Order 12866

    EPA has determined that this general permit is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

B. Paperwork Reduction Act

    The information collection requirements of this permit were 
previously approved by the Office of Management and Budget 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 (Discharge Monitoring Reports).

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
requires that EPA prepare a regulatory flexibility analysis for rules 
subject to the requirements of 5 USC 553(b) that have a significant 
impact on a substantial number of small entities. The permit issued 
today, however, is not a ``rule'' subject to the requirements of 5 
U.S.C. 553(b) and is therefore not subject to the Regulatory 
Flexibility Act.

D. 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'' (defined to be the same as ``rules'' 
subject to the RFA) on tribal, state and local governments and the 
private sector. The permit issued today, however, is not a ``rule'' 
subject to the RFA and is therefore not subject to the requirements of 
UMRA.

    Dated: August 13, 2002.
James Owens,
Regional Administrator.

Part I--Final General Permits Under the National Pollutant Discharge 
Elimination System (NPDES)

    Note: The following two general permits have been combined for 
purposes of this Federal Register. Part IA and Part IB contain 
general permits for the States of Massachusetts (both Commonwealth 
and Indian County Lands) and New Hampshire, respectively, Part IC-IE 
and Part II are common to both permits.

A. Massachusetts General Permit, Permit No. MAG070000

    In compliance with the provisions of the Federal Clean Water Act, 
as amended, (33 U.S.C. 1251 et seq.; the ``CWA''), and the 
Massachusetts Clean Waters Act, as amended, (M.G.L. chapter 21, 
sections 26-53), operators of facilities located in Massachusetts, 
which discharge groundwater and/or stormwater from construction 
dewatering activities to Class B and SB waters as designated in the 
Massachusetts Water Quality Standards, 314 CMR 4.00 et seq., are 
authorized to discharge to all waters, unless otherwise restricted, in 
accordance with effluent limitations, monitoring requirements and other 
conditions set forth herein. Discharges into Class A or SA waters need 
review and approval by MADEP.
    This permit shall become effective when issued. The permit and the 
authorization to discharge expire at midnight, five years from the 
effective date, which is the date of publication in the Federal 
Register and supersedes the permit issued on May 1, 1996.
    This General Permit consists of Part IA, Massachusetts General 
Permit; Parts IC-IE; and Part II, General Conditions.

    Signed this 13th day of August, 2002.
Linda M. Murphy,
Director, Office of Ecosystem Protection, U.S. Environmental Protection 
Agency, Boston, MA.

Glenn Haas,
Director, Division of Watershed Protection, Bureau of Resource 
Protection, Massachusetts Department of Environmental Protection, 
Boston, MA.

Effluent Limitations and Monitoring Requirements

    1. During the period beginning on the effective date and lasting 
through expiration, the permittee is authorized to discharge 
groundwater and/or stormwater from construction dewatering activities. 
All discharges shall pass through settling basins or other treatment 
system designed to remove total suspended solids unless specifically 
waived by the State.
    a. Each outfall discharging effluent from construction dewatering 
activities shall be limited and monitored as specified below. 
Monitoring for each outfall shall be reported.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                        Discharge limitations or other units (specify)                 Monitoring requirements measurement \2\
     Effluent characteristics      ---------------------------------------------------------------------------------------------------------------------
                                           Avg. monthly                 Max. daily                  Frequency                     Sample type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flow (MGD)........................  Report....................  Report....................  1/week...................  Actual or Estimated.
TSS (mg/l)........................  50........................  100.......................  1/week...................  Grab.
Oil and Grease (mg/l) \1\.........  (See Note 1.A.1.h)........  15........................  1/week...................  Grab.
pH (s.u.) \1\.....................  (See Part I.A.1.f. and g.)  ..........................  1/week...................  Grab.
LC50 & C-NOEC, %..................  (See Part 1.A.1.j.).......  ..........................  .........................  24-hr. composite.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Requirement for State Certification.
\2\ Samples shall be taken only when discharging.

    b. The discharge shall not cause a violation of the water quality 
standards.
    c. The discharge shall not cause an objectionable discoloration of 
the receiving water.
    d. There shall be no discharge of floating solids or visible foam 
in other than trace amounts.
    e. Samples taken in compliance with the monitoring requirements 
specified above shall be taken at a location that provides a 
representative analysis of the effluent just prior to discharge to the 
receiving water or if the effluent is commingled with another 
discharge, prior to such commingling.
    f. The pH of the effluent for discharges to Class A and Class B 
waters shall be in the range of 6.5-8.3 standard units and not more 
than 0.5 units outside of the background range. There shall be no 
change from background conditions that would impair any uses assigned 
to the receiving water Class.
    g. The pH of the effluent for discharges to Class SA and Class SB 
waters shall be in the range of 6.5-8.3 standard units and not more 
than 0.2 units outside of the background range. There shall be no 
change from background conditions that would impair any uses assigned 
to the receiving water Class.
    h. Sampling for oil and grease is required only if a periodic 
inspection of the discharge indicates the presence of a visible sheen, 
as defined in 40 CFR part 110. The discharge of a sheen of oil or 
gasoline constitutes an oil spill and must be reported immediately to 
the National Response Center (NRC) at 800/424-8802. Upon detection of a 
visible sheen, the discharge must stop immediately and the problem 
corrected.

[[Page 59511]]

The use of dispersants to treat the sheen is prohibited. This permit 
does not allow for the addition of any chemicals to treat the sheen.
    i. A discharge structure shall be constructed if necessary to 
protect the bank of the water body from erosion.
    j. Chronic (and modified acute) toxicity test(s) and/or priority 
pollutant scan shall be performed on the groundwater and/or stormwater 
discharge from construction dewatering activities by the permittee upon 
request by EPA and/or the MA DEP. See also, Section C.1.d. Testing 
shall be performed in accordance with EPA toxicity protocol to be 
provided at the time of the request. The test shall be performed on a 
24-hour composite sample to be taken during normal facility operation. 
The result of the test(s) shall be forwarded to both the EPA and the 
State within 30 days after completion.
2. State Permit Conditions
    1. This Discharge Permit is issued jointly by the U.S. 
Environmental Protection Agency (EPA) and the Massachusetts Department 
of Environmental Protection (MADEP) under Federal and State law, 
respectively. As such, all terms and conditions of this permit are 
hereby incorporated into and constitute a discharge permit issued by 
the Assistant Commissioner of the Massachusetts Bureau of Resource 
Protection pursuant to M.G.L. Chap. 21, Section 43.
    2. Each Agency shall have the independent right to enforce the 
terms and conditions of this Permit. Any modification, suspension or 
revocation of this Permit shall be effective only with respect to the 
Agency taking such action, and shall not affect the validity or status 
of this Permit as issued by the other Agency, unless and until each 
Agency has concurred in writing with such modification, suspension or 
revocation. In the event any portion of this Permit is declared, 
invalid, illegal or otherwise issued in violation of State law such 
permit shall remain in full force and effect under Federal law as an 
NPDES Permit issued by EPA. In the event this Permit is declared 
invalid, illegal or otherwise issued in violation of Federal law, this 
Permit shall remain in full force and effect under State law as a 
Permit issued by the Commonwealth of Massachusetts.

B. New Hampshire General Permit, Permit No. NHG070000

    In compliance with the provisions of the Federal Clean Water Act, 
as amended, (33 U.S.C. 1251 et. seq.; the ``CWA''), operators of 
facilities located in New Hampshire that discharge groundwater and/or 
stormwater from construction dewatering activities are authorized to 
discharge to Class B waters, unless otherwise restricted by State Water 
Quality Standards, New Hampshire RSA 485-A:8, in accordance with 
effluent limitations, monitoring requirements and other conditions set 
forth herein. The State of New Hampshire does not allow discharges to 
Class A waters under this general permit.
    This permit shall become effective when issued. The permit and the 
authorization to discharge expire at midnight, five years from the 
effective date, which is the date of publication in the Federal 
Register and supersedes the permit issued on May 1, 1996.
    This General Permit consists of Part 1B, New Hampshire General 
Permit; Parts 1C-1E; and Part II. General Conditions.
Signed this 13th day of August, 2002.
Linda M. Murphy,
Director, Office of Ecosystem Protection, Environmental Protection 
Agency, Boston, MA 02114.

Effluent Limitations and Monitoring Requirements

    1. During the period beginning on the effective date and lasting 
through expiration, the permittee is authorized to discharge 
groundwater and/or stormwater from construction dewatering activities 
to the State's Class B receiving waters. All discharges shall pass 
through settling basins or other treatment systems designed to remove 
total suspended solids.
    a. Each outfall discharging effluent from construction dewatering 
activities shall be limited and monitored as specified below. 
Monitoring for each outfall shall be reported.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                        Discharge limitations or other units (specify)                 Monitoring requirements measurement \1\
      Effluent characteristic      ---------------------------------------------------------------------------------------------------------------------
                                           Avg. monthly                 Max. daily                  Frequency                     Sample type
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flow (MGD)........................  Report....................  Report....................  1/week...................  Instantaneous or Continuous.
TSS (mg/l)........................  50........................  100.......................  1/week...................  Grab.
Oil and Grease (mg/l) \2\.........  See Note I.B.1.g..........  15........................  1/week...................  Grab.
pH (s.u.) \2\.....................  See Note I.B.1.f..........  ..........................  1/week...................  Grab.
LC50 & C-NOEC, %..................  (See Part 1.B.1.i.).......  ..........................  .........................  24-hr composite.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Samples shall be taken only when discharging.
\2\ Requirement for State Certification.

    b. The discharge shall not cause a violation of the water quality 
standards of the receiving water.
    c. The discharge shall not cause any visible and objectionable 
discoloration of receiving waters.
    d. The discharge shall be adequately treated to insure that the 
surface water remains free from pollutants in concentrations or 
combinations that settle to foam harmful deposits, float as foam, 
debris, scum or other visible pollutants. It shall be adequately 
treated to insure that the surface waters remain free from pollutants 
which odor, color, taste or turbidity in the receiving water which is 
not naturally occurring and would render it unsuitable for its 
designated uses.
    e. Samples taken in compliance with the monitoring requirements 
specified above shall be taken at a location that provides a 
representative analysis of the effluent just prior to discharge to the 
receiving water or, if the effluent is commingled with another 
permitted discharge, prior to such commingling.
    f. The pH of the effluent shall not be less than 6.5 standard units 
(su) nor greater than 8.0 su at any time unless these values are 
exceeded due to natural causes.
    g. Sampling for oil and grease is required only if a periodic 
inspection of the discharge indicates the presence of a visible sheen, 
as defined in 40 CFR part 110. The discharge of a sheen of oil or 
gasoline constitutes an oil spill and must be reported immediately to 
the National Response Center (NRC) at 800/424-8802. Upon detection of a 
visible sheen, the discharge must stop immediately and the problem 
corrected. The use of dispersants to treat the sheen is prohibited. 
This permit does not allow for the addition of any chemicals to treat 
the sheen.

[[Page 59512]]

    h. A discharge structure shall be constructed if necessary to 
protect the bank of the water body from erosion.
    i. Chronic (and modified acute) toxicity test(s) and/or priority 
pollutant scans shall be performed on the groundwater and/or stormwater 
discharge from construction dewatering activities by the permittee upon 
request by EPA and/or the NHDES. See also, Part C.1.d.
    Testing shall be performed in accordance with EPA toxicity protocol 
to be provided at the time of the request. The test shall be performed 
on a 24-hour composite sample to be taken prior to any discharge of 
groundwater. The result of the test(s) shall be forwarded to both the 
EPA and the State prior to any discharge of groundwater.
2. State Permit Conditions
    a. This NPDES Discharge Permit is issued by the U.S. Environmental 
Protection Agency under Federal and State law. Upon final issuance by 
the EPA, the New Hampshire Department of Environmental Services, Water 
Division, Concord, NH, 03302-0095, may adopt this Permit including all 
terms and conditions, as a state permit pursuant to RSA 485-A:13.

C. Common elements for All Permits

1. Conditions of the General NPDES Permit
    a. Geographic Areas: Massachusetts, both Commonwealth and Indian 
Country Lands (Permit MAG070000). All of the discharges to be 
authorized by the general NPDES permit for dischargers in the 
Commonwealth of Massachusetts and/or Indian Country lands into all 
waters of the Commonwealth and/or Indian Country lands as specified in 
Part IA of this permit unless otherwise restricted by the Massachusetts 
Surface Water Quality Standards, 314 CMR 4.00 (or as revised), 
including 314 CMR 4.04(3) Protection of Outstanding Resource Waters.
    New Hampshire (Permit No. NHG070000). All of the discharges to be 
authorized by the general NPDES permit for dischargers in the State of 
New Hampshire as specified in Part 1B of this permit are into Class B 
waters of the State of New Hampshire unless otherwise restricted by the 
State Water Quality Standards, New Hampshire RSA 485-A:8 (or as 
revised).
    b. Exclusions: Discharges of groundwater and stormwater generated 
wastewater associated with the construction of single family homes are 
not covered under this permit.
    This permit does not authorize the discharge or stormwater 
associated with construction sites which disturb greater than 5 acres 
of land. These sites are required to comply with 40 CFR 122.26.
    Discharges of stormwater runoff from construction sites less than 5 
acres, which is not pumped or drained from excavations associated with 
construction activity, are not covered under this NPDES permit.
    This permit is not available for discharges into impaired waters on 
the Federal Clean Water Act 303(d) list which are not attaining state 
water quality standards for the particular pollutants limited herein.
    This general permit is not available to ``New Source'' dischargers 
as defined in 40 CFR 122.2.
    c. Limitations on Coverage: Facilities seeking coverage under the 
Construction Dewatering Activity Discharges General Permit that cannot 
certify compliance with the National Historical Preservation Act and 
the Endangered Species Act (ESA) requirements, where applicable, must 
submit individual permit applications to the permitting authorities. 
Applicants who choose not to conduct informal consultations (See 
Section C.1.c.(2) below) with the Services on ESA requirements must 
submit an individual permit application to the permitting authorities.
    (1) Construction Dewatering Activity Discharges with Effects on 
Historic Properties. In order to be eligible for coverage under this 
permit, the applicant must be in compliance with the National Historic 
Preservation Act. This permit authorized construction dewatering 
activity discharges if the proper coordination has been conducted 
according to the requirements below:
    (i) Applicants are required to coordinate with the State Historic 
Preservation Officer (SHPO) and/or Tribal Historic Preservation Officer 
(THPO) and others regarding effects of their construction dewatering 
activity discharges on historic properties. See Section I.IV.K. of the 
Fact Sheet for information on the SHPO and THPO contacts).
    (ii) The applicant must provide evidence of prior screening for the 
presence of historic properties and coordinate with the relevant 
official(s) to develop a mitigation plan, as needed, consistent with 
the procedures regarding coordination with local officials described at 
Sections 800.4-800.6 of the National Historic Preservation Act 
regulations.
    In the event there is an inadvertent discovery of a historic 
property on the site during construction, the permittee must 
immediately stop the construction activity and coordinate with the 
appropriate official(s) consistent with the steps outlined in 36 CFR 
800.13 of the National Historic Preservation Act regulations.
    (2) Endangered and Threatened Species and/or Critical Habitat: 
Proposed construction dewatering activity discharges that are located 
in areas in which listed species may be present are not automatically 
covered under this Permit. Permit coverage under the construction 
dewatering activity general permit is only available for proposed 
construction dewatering activity discharges in areas that may affect 
the federally-listed endangered dwarf wedgemussel (Alsmidonta 
heterodon), in Massachusetts in the Fort River, Amherst (Hampshire 
County): the Mill River in Easthampton (Hampshire County); and the Mill 
River in Wheately (Franklin County), which is a different Mill River 
than the Easthampton Mill River; and in New Hampshire in the Ashuelot 
River in Surry to Swanzey (Cheshire County); and in the South Branch of 
the Ashuelot River in Swanzey (Cheshire County); and, the federally-
listed endangered shortnose sturgeon (Acipenser brevirostrum) in 
certain sections of the Merrimack and Connecticut Rivers in 
Massachusetts, if the applicant complies with the following 
requirements:
    (i) The permit applicant contacts the Services to determine: (1) If 
the construction dewatering activities would occur in designated 
critical habitat; (2) if listed species are present in the vicinity of 
the project area; and, (3) whether the applicant's discharges and 
discharge related activities are likely to affect listed species and/or 
critical habitats.
    (ii) Coverage under the general permit is available only if 
informal consultation with the Services under section 7 of the 
Endangered Species Act has been concluded which addresses the effects 
of the applicant's construction dewatering activity discharges on 
listed species and critical habitat and the consultation results in a 
written concurrence by the Service(s) on a finding that the applicant's 
construction dewatering activity discharges are not likely to adversely 
affect listed species and critical habitat.
    (iii) Permit applicants must submit a copy of the Service's written 
concurrence with their Notice of Intent submittal. Applicants are 
required to certify eligibility for coverage under the General Permit 
on their Notice of Intent Submittal (See Section 1.C.1.d, Notification 
by Permittee) and to maintain any supporting documentation for that 
determination.
    (IV) Applicants who choose to conduct informal consultation to meet

[[Page 59513]]

the Endangered Species Act eligibility requirements of this general 
permit are automatically designated as no-Federal representatives under 
this permit. See 50 CFR 402.08. Applicants who choose to conduct 
informal consultation as a non-Federal representative must notify both 
EPA-New England and the appropriate Service office in writing of that 
decision.
    d. Notification by Permittees: Operators of sites whose discharge, 
or discharges, are effluent from construction dewatering activities and 
whose sites are located in the geographic areas described in Part 
I.C.1.a. above, may submit to the Regional Administrator, EPA-NE, a 
Notice of Intent to be covered by the appropriate general permit. Each 
site must also submit a copy of the Notice of Intent to each State 
authority as appropriate (see individual State permits for appropriate 
authority and address). Notifications must be submitted by permittees 
who are seeking coverage under this permit for the first time and by 
those permittees who received coverage under the permit issued May 1, 
1996. This written notification must include for each individual site: 
(a) The owner's and/or operator's legal name, address and telephone 
number; (b) the site's name, address, contact name and telephone 
number; (c) the number of sites to be covered; (d) the site 
location(s); (e) the estimated construction start and completion dates; 
(f) the name(s) of the receiving waters into which discharge will 
occur; (g) a statement indicating if the site is located within Indian 
country; (h) a statement indicating whether any listed or proposed 
threatened or endangered species or designated critical habitat are in 
proximity to the construction dewatering activity discharges to be 
covered by this permit; (i) a statement indicating whether any historic 
property listed or eligible for listing on the National Register of 
Historic Places is located on the facility or in proximity to the 
discharge; (j) the number of discharge points and the anticipated 
frequency, duration, volume and rate of discharge for each outfall; (k) 
a topographic map (or other map if a topographic map is not available) 
indicating the site's location(s) and discharge point(s); (l) a 
description of any wastewater treatment: (m) storage of petroleum and 
chemicals on site; (n) history of land use of the site. In addition, 
for sites located in New Hampshire, the written notice must include, by 
designation on a map, the identification of groundwater contamination 
within 1,000 feet of the site (Note: This information can be generated 
over the Internet via the NHDES web site www.des.state.nh.us (One Stop 
Data Retrieval, Remediation Sites Report.) The web site also provides 
e-mail access to an NHDES Site Remediation Contact to answer questions 
about using the Web site) Groundwater contamination within 1,000 feet 
of the site must be designated on a map submitted with the written 
notice of intent. Discharges into Massachusetts Class A or SA water 
need a State antidegradation review. See Section IV.C. of Fact Sheet. 
Each applicant must certify that each discharge for which it is seeking 
coverage under this general permit (1) consists solely of effluent from 
discharges from the construction dewatering activities; (2) must 
certify that the discharge is eligible under the ESA requirements and 
whether the FWS and NMFS was involved in making the determination of 
eligibility and must submit a copy of the Service's written 
concurrence, where applicable, with this Notice of Intent; and (3) must 
certify that the discharge is eligible under the National Historic 
Preservation Act and whether the State Historic Preservation Officer or 
Tribal Historic Preservation Officer was involved in the determination 
of eligibility. The notice must be signed in accordance with the 
signatory requirements of 40 CFR 122.22 and submitted to both EPA-NE 
and the appropriate State Agency.
    In addition, one Whole Effluent Toxicity (WET) test result and/or 
one priority pollutant scan of the water to be discharged may be 
required as part of the Notice of Intent, on a case-by-case basis by 
the States and/or EPA as authorized at 40 CFR 122.44(d)(1)(v). If 
toxicity testing is required, EPA will provide the permittee with a 
copy of the test procedure and detailed protocol. The WET test will 
consist of one chronic and modified acute toxicity screening test with 
one hundred percent sample. The Ceriodaphnia dubia for fresh water and 
sea urchin for marine water shall be used as test organism. The 126 EPA 
Priority Pollutants are found at 40 CFR Part 423, Appendix A. All 
samples shall be tested using the analytical methods found in 40 CFR 
Part 136 or alternative methods approved by EPA in accordance with the 
procedures in 40 CFR Part 136. The permittee shall submit to EPA-NE and 
the appropriate State Agency the results of all testing conducted, as 
required at 40 CFR 122.41(l)(4)(ii).
    An authorization to discharge under this general permit, where the 
construction dewatering activity discharges to a municipal or private 
storm drain owned by another party, does not convey any rights or 
authorization to connect to that drain.
    The sites authorized to discharge under the final general permit 
will receive written notification from EPA-NE with Senate concurrence. 
Failure to submit to EPA-NE a Notice of Intent to be covered and/or 
failure to receive from EPA-NE written notification of permit coverage 
means that the facility is not authorized to discharge under this 
general permit. Sites who are denied permit coverage by EPA-NE are not 
authorized under this general permit to discharge from those sites to 
the receiving waters.
2. Administrative Aspects
    a. Request to be covered: A facility is not covered by any of these 
general permits until it meets the following requirements. First, it 
must send a Notice of Intent (NOI) to EPA-NE and the appropriate State 
indicating it meets the requirements of the permit and wants to be 
covered. And second, it must be notified in writing by EPA-NE that it 
is covered by this general permit.
    b. Eligibility to Apply: Any facility operating under an effective 
(unexpired) individual construction dewatering activity NPDES permit 
may request that the individual permit be revoked and that coverage 
under the general permit be granted, as outlined in 40 CFR 
122.28(b)(3)(v). If EPA revokes the individual permit, the general 
permit would apply to the discharge.
    Facilities with expired individual construction dewatering activity 
permits that have been administratively continued in accordance with 40 
CFR 122.6 may apply for coverage under this general permit. When 
coverage is granted the expired individual permit automatically will 
cease being in effect.
    Proposed new dischargers may apply for coverage under this general 
permit and must submit the NOI at least 30 days prior to the initiation 
of discharge.
    Facilities that were covered under the general permit that was 
issued on May 1, 1996 and that expired on May 1, 2001 need to apply for 
coverage under this general permit within 60 days from the effective 
date of this permit. Failure to submit a Notice of Intent within 60 
days from the effective date of this permit for continuation of the 
discharge will be considered discharging without a permit as of May 1, 
2001 for enforcement purposes. A Notice of Intent is not required if 
the permittee submits a Notice of Termination (see Part I.E.1) of 
discharge before the 60-day time frame expires.

[[Page 59514]]

    c. Continuation of this General Permit After Expiration: If this 
permit is not reissued prior to the expiration date, it will be 
administratively continued in accordance with the Administrative 
Procedures Act and remain in force and in effect as to any particular 
permittee as long as the permittee submits a new Notice of Intent two 
(2) months prior to the expiration date in the permit. However, once 
this permit expires EPA cannot provide written notification of coverage 
under this general permit to any permittee who submits Notice of Intent 
to EPA are the permit's expiration date. Any permittee who was granted 
permit coverage prior to the expiration date will automatically remain 
covered by the continued permit until the earlier of:
    (1) Reissuance of this permit, at which time the permittee must 
comply with the Notice of Intent conditions of the new permit to 
maintain authorization to discharge; or
    (2) The permittees' submittal of a Notice of Termination; or
    (3) Issuance of an individual permit for the permittee's 
discharges; or
    (4) A formal permit decision by the Director not to reissue this 
general permit, at which time the permittee must seek coverage under an 
alternative general permit or an individual permit.

D. Monitoring and Reporting

    Massachusetts and New Hampshire: Monitoring results obtained during 
the previous month shall be summarized for each month and recorded on 
separated Discharge Monitoring Report Form(s) that shall be kept on-
site in a secured place. The reports should be readily available for 
review at any time during the working hours by EPA and State officials. 
All notifications and communications should be sent to both EPA-NE and 
the appropriate State office at the following addresses:

1. EPA-NE

U.S. Environmental Protection Agency, New England Region, Municipal 
Assistance Unit (CMU), One Congress Street, Boston, MA 02114.

2. Massachusetts Department of Environmental Protection

    a. The Regional Offices wherein the discharge occurs, shall receive 
a copy of all notifications and communications:

Massachusetts Department of Environmental Protection, Bureau of 
Resource Protection, Western Regional Office, 436 Dwight Street, 
Springfield, MA 01103.
Massachusetts Department of Environmental Protection, Bureau of 
Resource Protection, Southeastern Regional Office, 20 Riverside Drive, 
Lakeville, MA 02347.
Massachusetts Department of Environmental Protection, Division of Water 
Pollution Control, Northeastern Regional Office, 205A Lowell Street, 
Wilmington, MA 01887.
Massachusetts Department of Environmental Protection, Bureau of 
Resource Protection, Central Regional Office, 627 Main Street, 
Worcester, Massachusetts 01608.

    b. Copies of all notifications required by this permit shall also 
be submitted to the State at:

Massachusetts Department of Environmental Protection, Division of 
Watershed Management, 627 Main Street, Worcester, MA 01608.

    c. Copies of the State Form BRP WM 10, Request for General Permit 
coverage for Surface Water Discharge from a Construction Dewatering 
site, and the Transmittal Form for Permit Application and Payment, may 
be obtained at the DEP website at (www.state.ma.us/dep) by clicking on 
``Permit Applications'' and ``Watershed Management'' by telephoning the 
DEP Info Service Center (Permitting) at 617-338-2255 or 1-800-462-0444 
in 508, 413, 978 and 781 area codes; or from any DEP Regional Service 
Center located in each Regional Office.
    A copy of the transmittal form, a copy of the check, and Form BRP 
WM 10 should be sent to Massachusetts Department of Environmental 
Protection, 627 Main Street, Worcester, MA 01608. A copy of the 
transmittal form and the $250 fee should be sent to MADEP PO Box 4062, 
Boston, MA 02111. Municipalities are fee-exempt, but should send a copy 
of the transmittal form to that address for project tracking purposes. 
A copy of Form BRP WM 10 should be sent to EPA-New England, One 
Congress Street, Mail Code CMU, Boston, MA 02114-2023. Keep a copy of 
the transmittal form and a copy of the application package for your 
records.

3. New Hampshire Department of Environmental Services

    Copies of all notifications and communications should be sent to:

New Hampshire Department of Environmental Service, Water Division, PO 
Box 95, 6 Hazen Drive, Concord, NH 03302-0095.

E. Additional General Permit Conditions

    1. Termination of Operations: Operators of facilities and/or 
operations authorized under this permit shall notify the Director upon 
the termination of discharges. The notice must contain the name, 
mailing address, and location of the facility for which the 
notification is submitted, the NPDES permit number for the construction 
dewatering activity discharge identified by the notice, and an 
indication of whether the construction dewatering activity discharge 
has been eliminated or the operator of the discharge has changed. The 
notice must be signed in accordance with the signatory requirements of 
40 CFR 122.22. The notice must be sent to both EPA and the appropriate 
State agency via certified mail.
    2. When the Director May Require Application for an Individual 
NPDES permit.
    a. The Director may require any person authorized by this permit to 
apply for and obtain an individual NPDES permit. Any interested person 
may petition the Director to take such action. Instances where an 
individual permit may be required include the following:
    (1) The discharge(s) is a significant contributor of pollution;
    (2) The discharger is not in compliance with the conditions of this 
permit;
    (3) A change has occurred in the availability of the demonstrated 
technology of practices for the control or abatement of pollutants 
applicable to the point source.
    (4) Effluent limitation guidelines are promulgated for point 
sources covered by this permit;
    (5) A Water Quality Management Plan or Total Maximum Daily Load 
containing requirements applciable to such point source is approved;
    (6) Discharge to the territorial sea;
    (7) Discharge to outstanding natural resource water; or
    (8) The point source(s) covered by this permit no longer;
    (a) Involves the same or substantially similar types of operations;
    (b) Discharges the same types of wastes;
    (c) Requires the same effluent llimitations or operating 
conditions; and/or;
    (d) Requires the same or similar monitoring.
    b. The Director may require an individual permit only if the 
permittee authorized by the general permit has been notified in writing 
that an individual permit is required, and has been given a brief 
explanation of the reasons for this decision.
    3. When an Individual NPDES Permit may be Requested.
    a. Any operator may request to be excluded from the coverage of 
this general permit by applying for an individual permit.

[[Page 59515]]

    b. When an individual NPDES permit is issued to an operator 
otherwise subject to this general permit, the applicability of this 
permit to that owner or operator is automatically terminated on the 
effective date of the individual permit.

Part II, Standard Conditions

Section A. General Requirements

    1. Duty to Comply: The permittee must comply with all conditions of 
this permit. Any permit noncompliance constitutes a violation of the 
Clean Water Act and is grounds for enforcement action; for permit 
termination, revocation and reissuance, or modification; or for denial 
of a permit renewal application.
    a. The permittee shall comply with effluent standards or 
prohibitions established under section 307(a) of the CWA for toxic 
pollutants and with standards for sewage sludge use or disposal 
established under section 405(d) of the CWA within the time provided in 
the regulations that establish these standards or prohibitions, even if 
the permit has not yet been modified to incorporate the requirements.
    b. The CWA provides that any person who violates sections 301, 302, 
306, 307, 308, 318, or 405 of the CWA or any permit condition or 
limitation implementing any of such sections in a permit issued under 
section 402, or any requirement imposed in a pretreatment program 
approved under section 402(a)(3) or 402(b)(8) of the CWA is subject to 
a civil penalty not to exceed $25,000 per day for each violation. Any 
person who negligently violates such requirements is subject to a fine 
of not less than $2,500 nor more than $25,000 per day of violation, or 
by imprisonment for not more than 1 year, or both. Any person who 
knowingly violates such requirements is subject to a fine of not less 
than $5,000 nor more than $50,000 per day of violation, or by 
imprisonment for not more than 3 years, or both. (Note: See 40 CFR 
122.41(a)(2) for additional enforcement criteria.)
    c. Any person may be assessed an administrative penalty by the 
Administrator for violating sections 301, 302, 306, 307, 308, 318, 405 
of the CWA, or any permit condition or limitation implementing any of 
such sections in a permit issued under section 402 of the CWA. 
Administrative penalties for Class I violations are not to exceed 
$10,000 per violation, with the maximum amount of any Class I penalty 
assessed not to exceed $25,000. Penalties for Class II violations are 
not to exceed $10,000 per day for each day during which the violation 
continues, with the maximum amount of any Class II penalty not to 
exceed $125,000.
    2. Permit Actions: This permit may be modified, revoked and 
reissued, or terminated for cause. The filing of a request by the 
permittee for a permit modification, revocation and reissuance, or 
termination, or a notification of planned changes or anticipated 
noncompliance does not stay and permit condition.
    3. Duty to Provide Information: The permittee shall furnish to the 
Regional Administrator, within a reasonable time, any information which 
the Regional Administrator may request to determine whether cause 
exists for modifying, revoking and reissuing, or terminating this 
permit, or to determine compliance with this permit. The permittee 
shall also furnish to the Regional Administrator, upon request, copies 
of records required to be kept by this permit.
    4. Reopener Clause: The Regional Administrator reserves the right 
to make appropriate revisions to this permit in order to establish any 
appropriate effluent limitations, schedules of compliance, or other 
provisions which may be authorized under the CWA in order to bring all 
discharges into compliance with the CWA.
    5. Oil and Hazardous Substance Liability: Nothing in this permit 
shall be construed to preclude the institution of any legal action or 
relieve the permittee from any responsibilities, liabilities, or 
penalties to which the permittee is or may be subject under section 311 
of the CWA, or section 106 of the Comprehensive Environmental Response, 
Compensation and Liability Act of 1980 (CERCLA).
    6. Property Rights: The issuance of this permit does not convey any 
property rights of any sort, nor any exclusive privileges.
    7. Confidentiality of Information:
    a. In accordance with 40 CFR part 2, any information submitted to 
EPA pursuant to these regulations may be claimed as confidential by the 
submitter. Any such claim must be asserted at the time of submission in 
the manner prescribed on the application form or instructions or, in 
the case of other submissions, by stamping the words ``confidential 
business information'' on each page containing such information. If no 
claim is made at the time of submission, EPA may make the information 
available to the public without further notice. If a claim is asserted, 
the information will be treated in accordance with the procedures in 40 
CFR part 2 (Public Information).
    b. Claims of confidentiality for the following information will be 
denied:
    (i) The name and address of any permit applicant or permittee;
    (ii) Permit applications, permits, and effluent data as defined in 
40 CFR 2.302(a)(2).
    c. Information required by NPDES application forms provided by the 
Regional Administrator under Sec.  122.21 may not be claimed 
confidential. This includes information submitted on the forms 
themselves and any attachments used to supply information required by 
the forms.
    8. Duty to Reapply: If the permittee wishes to continue an activity 
regulated by this permit after its expiration date, the permittee must 
apply for and obtain a new permit. The permittee shall submit a new 
notice of intent at least 60 days before the expiration date of the 
existing permit, unless permission for a later date has been granted by 
the Regional Administrator. (The Regional Administrator shall not grant 
permission for applications to be submitted later than the expiration 
date of the existing permit.)
    9. State Authorities: Nothing in part 122, 123, or 124 precludes 
more stringent State regulation of any activity covered by these 
regulations, whether or not under an approved State program.
    10. Other Laws: The issuance of a permit does not authorize any 
injury to persons or property or invasion of other private rights, nor 
does it relieve the permittee of its obligation to comply with any 
other applicable Federal, State, and local laws and regulations.

Section B: Operation and Maintenance of Pollution Controls

    1. Proper Operation and Maintenance: The permittee shall at all 
times properly operate and maintain all facilities and systems of 
treatment and control (and related appurtenances) which are installed 
or used by the permittee to achieve compliance with the conditions of 
this permit and with the requirements of storm water pollution 
prevention plans. Proper operation and maintenance also includes 
adequate laboratory controls and appropriate quality assurance 
procedures. This provision requires the operation of back-up or 
auxiliary facilities or similar systems only when the operation is 
necessary to achieve compliance with the conditions of the permit.
    2. Need to Halt or Reduce Not a Defense: It shall not be a defense 
for a permittee in an enforcement action that it would have been 
necessary to halt or reduce the permitted activity in order to

[[Page 59516]]

maintain compliance with the conditions of this permit.
    3. Duty to Mitigate: The permittee shall take all reasonable steps 
to minimize or prevent any discharge or sludge use or disposal in 
violation of this permit which has a reasonable likelihood of adversely 
affecting human health or the environment.
    4. Bypass:
    a. Definitions.
    (1) ``Bypass'' means the intentional diversion of waste streams 
from any portion of a treatment facility.
    (2) ``Severe property damage'' means substantial physical damage to 
property, damage to the treatment facilities which causes them to 
become inoperable, or substantial and permanent loss of natural 
resources which can reasonably be expected to occur in the absence of a 
bypass. Severe property damage does not mean economic loss caused by 
delays in production.
    b. Bypass not exceeding limitations. The permittee may allow any 
bypass to occur which does not cause effluent limitations to be 
exceeded, but only if it also is for essential maintenance to assure 
efficient operation. These bypasses are not subject to the provisions 
of Paragraphs B.4.c and 4.d of this section.
    c. Notice.
    (1) Anticipated bypass: If the permittee knows in advance of the 
need for a bypass, it shall submit prior notice, if possible at least 
ten days before the date of the bypass.
    (2) Unanticipated bypass: The permittee shall submit notice of an 
unanticipated bypass as required in Paragraph D.1.e (24-hour notice).
    d. Prohibition of bypass:
    (1) Bypass is prohibited, and the Regional Administrator may take 
enforcement action against a permittee for bypass, unless:
    (a) Bypass was unavoidable to prevent loss of life, personal 
injury, or severe property damage;
    (b) There were no feasible alternatives to the bypass, such as the 
use of auxiliary treatment facilities, retention of untreated wastes, 
or maintenance during normal periods of equipment downtime. This 
condition is not satisfied if adequate back-up equipment should have 
been installed in the exercised of reasonable engineering judgment to 
prevent a bypass which occurred during normal periods of equipment 
downtime or preventive maintenance; and
    (c)(i) The permittee submitted notices as required under Paragraph 
4.c of this section.
    (ii) The Regional Administrator may approve an anticipated bypass 
after considering its adverse effects, if the Regional Administrator 
determines that it will meet the three conditions listed above in 
Paragraph 4.d of this section.
    5. Upset.
    a. Definition. ``Upset'' means an exceptional incident in which 
there is unintentional and temporary non-compliance with technology-
based permit effluent limitations because of factors beyond the 
reasonable control of the permittee. An upset does not include 
noncompliance to the extent caused by operational error, improperly 
designed treatment facilities, inadequate treatment facilities, lack of 
preventive maintenance, or careless or improper operation.
    b. Effect of an upset. An upset constitutes an affirmative defense 
to an action brought for noncompliance with such technology-based 
permit effluent limitations if the requirements of Paragraph B.5.c of 
this section are met. No determination made during administrative 
review of claims that noncompliance was caused by upset, and before an 
action for noncompliance, is final administrative action subject to 
judicial review.
    c. Conditions necessary for a demonstration of upset. A permittee 
who wishes to establish the affirmative defense of upset shall 
demonstrate, through properly signed, contemporaneous operating logs, 
or other relevant evidence that:
    (1) An upset occurred and that the permittee can identify the 
cause(s) of the upset;
    (2) The permitted facility was at the time being properly operated;
    (3) The permittee submitted notice of the upset as required in 
Paragraphs D.1.a and 1.e (24-hour notice); and
    (4) The permittee complied with any remedial measures required 
under B.3. above.
    d. Burden of proof. If any enforcement proceeding the permittee 
seeking to establish the occurrence of an upset has the burden of 
proof.

Section C. Monitoring and Records

    1. Monitoring and Records.
    a. Samples and measurements taken for the purpose of monitoring 
shall be representative of the monitored activity.
    b. Except for records of monitoring information required by this 
permit related to the permittee's sewage sludge use and disposal 
activities, which shall be retained for a period of at least five years 
(or longer as required by 40 CFR part 503), the permittee shall retain 
records of all monitoring information, including all calibration and 
maintenance records and all original strip chart recordings for 
continuous monitoring instrumentation, copies of all reports required 
by this permit, and records of all data used to complete the 
application for this permit, for a period of at least 3 years from the 
date of the sample, measurement, report or application except for the 
information concerning storm water discharges which must be retained 
for a total of 6 years. This retention period may be extended by 
request of the Regional Administrator at any time.
    c. Records of monitoring information shall include:
    (1) The date, exact place, and time of sampling or measurements;
    (2) The individual(s) who performed the sampling or measurements;
    (3) The date(s) analyses were performed;
    (4) The individual(s) who performed the analyses;
    (5) The analytical techniques or methods used; and
    (6) The results of such analyses.
    d. Monitoring results must be conducted according to test 
procedures approved under 40 CFR part 136 or, in the case of sludge use 
or disposal, approved under 40 CFR part 136 unless otherwise specified 
in 40 CFR part 503, unless other test procedures have been specified in 
the permit.
    e. The Clean Water Act provides that any person who falsifies, 
tampers with, or knowingly renders inaccurate any monitoring device or 
method required to be maintained under this permit shall, upon 
conviction, be punished by a fine of not more than $10,000, or by 
imprisonment for not more than 2 years, or both. If a conviction of a 
person is for a violation committed after a first conviction of such 
person under this paragraph, punishment is a fine of not more than 
$20,000 per day of violation, or by imprisonment of not more than 4 
years, or both.
    2. Inspection and Entry: The permittee shall allow the Regional 
Administrator, or an authorized representative (including an authorized 
contractor acting as a representative of the Administrator), upon 
presentation of credentials and other documents as may be required by 
law, to:
    a. Enter upon the permittee's premises where a regulated facility 
or activity is located or conducted, or where records must be kept 
under the conditions of this permit;
    b. Have access to and copy, at reasonable times, any records that 
must be kept under the conditions of this permit;
    c. Inspect at reasonable times any facilities, equipment (including 
monitoring and control equipment),

[[Page 59517]]

practices, or operations regulated or required under this permit; and,
    d. Sample or monitor at reasonable times, for the purposes of 
assuring permit compliance or as otherwise authorized by the Clean 
Water Act, any substances or parameters at any location.

Section D. Reporting Requirements

    1. Reporting Requirements.
    a. Planned changes. The permittee shall give notice to the Regional 
Administrator as soon as possible of any planned physical alterations 
or additions to the permitted facility. Notice is required only when:
    (1) The alteration or addition to a permitted facility may meet one 
of the criteria for determining whether a facility is a new source in 
40 CFR 122.29(b); or
    (2) The alteration or addition could significantly change the 
nature or increase the quantity of pollutants discharged. This 
notification applies to pollutants which are subject to the effluent 
limitations in the permit, not to the notification requirements under 
40 CFR 122.42(a)(l).
    (3) The alteration or addition results in a significant change in 
the permittee[s sludge use or disposal practices, and such alteration, 
addition or change may justify the application of permit conditions 
different from or absent in the existing permit, including notification 
of additional use or disposal sites not reported during the permit 
application process or not reported pursuant to an approved land 
application plan.
    b. Anticipated noncompliance. The permittee shall give advance 
notice to the Regional Administrator of any planned changes in the 
permitted facility or activity which may result in noncompliance with 
permit requirements.
    c. Transfers. This permit is not transferable to any person except 
after notice to the Regional Administrator. The Regional Administrator 
may require modification or revocation and reissuance of the permit to 
change the name of the permittee and incorporate such other 
requirements as may be necessary under the Clean Water Act. (See Sec.  
122.61; in some cases, modification or revocation and reissuance is 
mandatory.)
    d. Monitoring reports. Monitoring results shall be reported at the 
intervals specified elsewhere in this permit.
    (1) Monitoring results must be reported on a Discharge Monitoring 
Report (DMR) or forms provided or specified by the Regional 
Administrator for reporting results of monitoring of sludge use or 
disposal practices.
    (2) If the permittee monitors any pollutant more frequently than 
required by the permit using test procedures approved under 40 CFR part 
136 or, in the sludge use of disposal, approved under 40 CFR part 136 
unless otherwise specified in 40 CFR part 503, or as specified in the 
permit, the results of this monitoring shall be included in the 
calculation and reporting of the data submitted in the DMR or sludge 
reporting form specified by the Regional Administrator.
    (3) Calculations for all limitations which require averaging of 
measurement shall utilize an arithmetic mean unless otherwise specified 
by the Regional Administrator in the permit.
    e. Twenty-four hour reporting.
    (1) The permittee shall report any noncompliance which may endanger 
health or the environment. Any information shall be provided orally 
within 24 hours from the time the permittee becomes aware of the 
circumstances. A written submission shall also be provided within 5 
days of the time the permittee becomes aware of the circumstances. The 
written submission shall contain a description of the noncompliance and 
its cause; the period of noncompliance, including exact dates and 
times, and if the noncompliance has not been corrected, the anticipated 
time it is expected to continue; and steps taken or planned to reduce, 
eliminate, and prevent reoccurrence of the noncompliance.
    (2) The following shall be included as information which must be 
reported within 24 hours under this paragraph.
    (a) Any unanticipated bypass which exceeds any effluent limitation 
in the permit. (See Sec.  122.41(g))
    (b) Any upset which exceeds any effluent limitation in the permit.
    (c) Violation of a maximum daily discharge limitation for any of 
the pollutants listed by the Regional Administrator in the permit to be 
reported within 24 hours. (See Sec.  122.44(g))
    (3) The Regional Administrator may waive the written report on a 
case-by-case, basis for reports under Paragraph D.1.e if the oral 
report has been received within 24 hours.
    f. Compliance Schedules. Reports of compliance or noncompliance 
with, or any progress reports on, interim and final requirements 
contained in any compliance schedule of this permit shall be submitted 
no later than 14 days following each schedule date.
    g. Other noncompliance. The permittee shall report all instances of 
noncompliance not reported under Paragraphs D.1.d, D.1.e and D.1.f of 
this section, at the time monitoring reports are submitted. The reports 
shall contain the information listed in Paragraph D.1.e of this 
section.
    h. Other information. Where the permittee becomes aware that if 
failed to submit any relevant facts in a permit application, or 
submitted incorrect information in a permit application or in any 
report to the Regional Administrator, it shall promptly submit such 
facts or information.
    2. Signatory Requirement.
    a. All applications, reports, or information submitted to the 
Regional Administrator shall be signed and certified. (see Sec.  
122.22)
    b. The CWA provides that any person who knowingly makes any false 
statement, representation, or certification in any record or other 
document submitted or required to be maintained under this permit, 
including monitoring reports or reports of compliance or non-compliance 
shall, upon conviction, be punished by a fine of not more than $10,000 
per violation, or by imprisonment for not more than 6 months per 
violation, or by both.
    3. Availability of Reports: Except for data determined to be 
confidential under Paragraph A.8. above, all reports prepared in 
accordance with the terms of this permit shall be available for public 
inspection at the offices of the State water pollution control agency 
and the Regional Administrator. As required by the CWA, effluent data 
shall not be considered confidential. Knowingly making any false 
statement on any such report may result in the imposition of criminal 
penalties as provided for in section 309 of the CWA.

Section E. Other Conditions

    1. Definitions for purposes of this permit are as follows:
    Administrator means the Administrator of the United States 
Environmental Protection Agency, or an authorized representative.
    Applicable standards and limitations means all State, interstate, 
and Federal standards and limitations to which a ``discharge'' or a 
related activity is subject to, including water quality standards, 
standards of performance, toxic effluent standards or prohibitions, 
``best management practices,'' and pretreatment standards under 
sections 301, 302, 303, 304, 306, 307, 308, 403, and 405 of CWA.
    Application means the EPA standard national forms for applying for 
a permit, including any additions, revisions or modifications to the 
forms; or forms approved by EPA for use in ``approved

[[Page 59518]]

States,'' including any approved modifications or revisions.
    Average means the arithmetic mean of values taken at the frequency 
required for each parameter over the specified period. For total and/or 
fecal coliform, the average shall be the geometric mean.
    Average monthly discharge limitation means the highest allowable 
average of ``daily discharges'' over a calendar month, calculated as 
the sum of all daily discharges measured during a calendar month 
divided by the number of daily discharges measured during that month.
    Average weekly discharge limitation means the highest allowable 
average of ``daily discharges'' over a calendar week, calculated as the 
sum of all daily discharges measured during a calendar week divided by 
the number of daily discharges measured during that week.
    Best Management Practices (BMPs) means schedules of activities, 
prohibitions of practices, maintenance procedures, and other management 
practices to prevent or reduce the pollution of ``waters of the United 
States.'' BMPs also include treatment requirements, operating 
procedures, and practices to control plant site runoff, spillage or 
leaks, sludge or waste disposal, or drainage from raw material storage.
    Best Professional Judgement (BPJ) means a case-by-case 
determination of Best Practicable Treatment (BPT), Best Available 
Treatment (BAT) or other appropriate standard based on an evaluation of 
the available technology to achieve a particular pollutant reduction.
    Composite Sample--A sample consisting of a minimum of eight grab 
samples collected at equal intervals during a 24-hour period (or lesser 
period as specified in the section on Monitoring and Reporting) and 
combined proportional to flow, or a sample continuously collected 
proportionally to flow over that same time period.
    Continuous Discharge means a ``discharge'' which occurs without 
interruption throughout the operating hours of the facility except for 
infrequent shutdowns for maintenance, process changes, or similar 
activities.
    CWA or ``The Act'' means the Clean Water Act (formerly referred to 
as the Federal Water Pollution Control Act or Federal Water Pollution 
Control Act Amendments of 1972) Pub. L. 92-500, as amended by Pub. L. 
95-217, Pub. L. 95-576, Pub. L. 96-483 and Pub. L. 97-117; 33 U.S.C. 
1251 et seq.
    Daily Discharge means the discharge of a pollutant measured during 
a calendar day or any 24-hour period that reasonably represents the 
calendar day for purposes of sampling. For pollutants with limitations 
expressed in units of mass, the daily discharge is calculated as the 
total mass of the pollutant discharged over the day. For pollutants 
with limitations expressed in other units of measurements, the daily 
discharge is calculated as the average measurement of the pollutant 
over the day.
    Director means the person authorized to sign NPDES permits by EPA 
and/or the State.
    Discharge Monitoring Report Form (DMR) means the EPA standard 
national form, including any subsequent additions, revisions, or 
modifications, for the reporting of self- monitoring results by 
permittees. DMRs must be used by ``approved States'' as well as by EPA. 
EPA will supply DMRs to any approved State upon request. The EPA 
national forms may be modified to substitute the State Agency name, 
address, logo, and other similar information, as appropriate, in place 
of EPA's.
    Discharge of a pollutant means:
    (a) Any addition of any ``pollutant'' or combination of pollutants 
to ``waters of the United States'' from any ``point source,'' or
    (b) Any addition of any pollutant or combination of pollutants to 
the waters of the ``contiguous zone'' or the ocean from any point 
source other than a vessel or other floating craft which is being used 
as means of transportation. This definition includes additions of 
pollutants into waters of the United States from: surface runoff which 
is collected or channeled by man; discharges through pipes, sewers, or 
other conveyances owned by a State, municipality, or other person which 
do not lead to a treatment works; and discharges through pipes, sewers, 
or other conveyances leading into privately owned treatment works. This 
term does not include an addition of pollutants by any ``indirect 
discharger.''
    Effluent limitation means any restriction imposed by the Director 
on quantities, discharge rates, and concentrations of ``pollutants'' 
which are ``discharged'' from ``point sources'' into ``waters of the 
United States,'' the waters of the ``contiguous zone,'' or the ocean.
    Effluent limitations guidelines means a regulation published by the 
Administrator under section 304(b) of CWA to adopt or revise ``effluent 
limitations.''
    EPA means the United States ``Environmental Protection Agency.''
    Grab Sample--An individual sample collected in a period of less 
than 15 minutes.
    Hazardous Substance means any substance designated under 40 CFR 
part 116 pursuant to section 311 of CWA.
    Indian Country, as defined at 18 U.S.C. 1151 means: (a) All lands 
within the limits of any Indian reservation under the jurisdiction of 
the United States Government, notwithstanding the issuance of any 
patent, and including rights-of-way- running through the reservation; 
(b) all dependent Indian communities within the borders of the United 
States whether within the original or subsequently acquired territory 
thereof, and whether within or without the limits of a state; and (c) 
all Indian allotments, the Indian titles to which have not been 
extinguished, including rights-of-way running through the same. This 
definition includes all land held in trust for an Indian tribe.
    Maximum daily discharge limitation means the highest allowable 
``daily discharge.''
    Municipality means a city, town, borough, county, parish, district, 
association, or other public body created by or under State law and 
having jurisdiction over disposal of sewage, industrial wastes, or 
other wastes, or an Indian tribe or an authorized Indian tribe 
organization, or a designated and approved management agency under 
section 208 of CWA.
    National Pollutant Discharge Elimination System means the national 
program for issuing, modifying, revoking and reissuing, terminating, 
monitoring and enforcing permits, and imposing and enforcing 
pretreatment requirements, under sections 307, 402, 318, and 405 of 
CWA. The term includes an ``approved program.''
    New discharger means any building, structure, facility, or 
installation:
    (a) From which there is or may be a ``discharge of pollutants'';
    (b) That did not commence the ``discharge of pollutants'' at a 
particular ``site'' prior to August 13, 1979;
    (c) Which is not a ``new source;'' and
    (d) Which has never received a finally effective NPDES permit for 
discharges at that ``site''. This definition includes an ``indirect 
discharger'' which commence discharging into ``waters of the United 
States'' after August 13, 1979. It also includes any existing mobile 
point source (other than an offshore of coastal oil and gas exploratory 
drilling rig or a coastal oil and gas developmental drilling rig) such 
as a seafood processing rig, seafood processing vessel, or aggregate 
plant, that begins discharging at a ``site'' for which it does not have 
a permit; and any offshore or coastal mobile oil and gas exploratory 
drilling rig or coastal mobile oil and gas development drilling rig 
that

[[Page 59519]]

commences the discharge of pollutants after August 13, 1979, at a 
``site'' under EPA's permitting jurisdiction for which it is not 
covered by an individual or general permit and which is located in an 
area determined by the Regional Administrator in the issuance of a 
final permit to be an area of biological concern. In determining 
whether an area is an area of biological concern, the Regional 
Administrator shall consider the factors specified in 40 CFR 
125.122(a)(1) through (10).
    An offshore or coastal mobile exploratory drilling rig or coastal 
mobile developmental drilling rig will be considered a ``new 
discharger'' only for the duration of its discharge in an area of 
biological concern.
    New source means any building, structure, facility, or installation 
from which there is or may be a ``discharge of pollutants,'' the 
construction of which commenced:
    (a) After promulgation of standards of performance under section 
306 of CWA which are applicable to such.
    (b) After proposal of standards of performance in accordance with 
section 306 of CWA which are applicable to such source, but only if the 
standards are promulgated in accordance with section 306 within 120 
days of their proposal.
    NPDES means ``National Polluant Discharge Elimination System.''
    Non-Contact Cooling Water is water used to reduce temperature which 
does not come in direct contact with any raw material, intermediate 
product, a waste product or finished product.
    Owner of operator means the owner or operator of an ``facility or 
activity'' subject to regulation under the NPDES programs.
    Permit means an authorization, license, or equivalent control 
document issued by EPA or an ``approved State.''
    Person means an individual, association, partnership, corporation, 
municipality, State or Federal agency, or an agent or employee thereof.
    Point Source means any discernible, confined, and discrete 
conveyance, including but not limited to any pipe, ditch, channel, 
tunnel, conduit, well, discrete fissure, container, rolling stock, 
concentrated animal feeding operation, vessel, or other floating craft, 
from which pollutants are or may be discharged. This term does not 
include return flows from irrigated agriculture.
    Pollutant means dredged spoil, solid waste, incinerator residue, 
filter backwash, sewage, garbage, sewage sludge, munitions, chemical 
wastes, biological materials, radioactive materials (except those 
regulated under the Atomic Energy Act of 1954, as amended (42 U.S.C. 
2011 et seq.)), heat, wrecked or discarded equipment, rock, sand, 
cellar dirt and industrial, municipal, and agricultural waste 
discharged into water. It does not mean:
    (a) Sewage from vessels; or
    (b) Water, gas, or other material which is injected into a well to 
facilitate production of oil or gas, or water derived in association 
with oil and gas production and disposed of in a well, if the well used 
either to facilitate production or for disposal purposes is approved by 
authority of the State in which the well is located, and if the State 
determines that the injection or disposal will not result in the 
degradation of ground or surface water resources.
    Primary industry category means any industry category listed in the 
NRDC settlement agreement (Natural Resources Defense Council et al. v. 
Train, 8 E.R.C. 2120 (D.D.C. 1976), modified 12 E.R.C. 1833 (D.D.C. 
1979)); also listed in Appendix A of 40 CFR part 122.
    Process wastewater means any water which, during manufacturing or 
processing, comes into direct contact with or results from the 
production or use of any raw material, intermediate product, finished 
produced, byproduct, or waste product.
    Regional Administrator means the Regional Administrator, EPA-New 
England, Boston, Massachusetts.
    State means any of the 50 States, the District of Columbia, Guam, 
the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, 
the Trust Territory of the Pacific Islands.
    Secondary Industry Category means any industry category which is 
not a ``primary industry category.''
    Toxic pollutant means any pollutant listed as toxic in appendix D 
of 40 CFR part 122, under section 307(a)(1) of CWA.
    Waters of the United States means:
    (a) All waters which are currently used, were used in the past, or 
may be susceptible to use in interstate or foreign commerce, including 
all waters which are subject to the ebb and flow of the tide;
    (b) All interstate waters, including interstate ``wetlands'';
    (c) All other waters such as intrastate lakes, rivers, streams 
(including intermittent streams), mudflats, sandflats, ``wetlands,'' 
sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds 
the use, degradation, or destruction of which would affect or could 
affect interstate or foreign commerce including any such waters:
    (1) Which are or could be used by interstate or foreign travelers 
for recreational or other purposes;
    (2) From which fish or shellfish are or could be taken and sold in 
interstate or foreign commerce; or,
    (3) Which are used or could be used for industrial purposes by 
industries in interstate commerce;
    (d) All impoundments of waters otherwise defined as waters of the 
United States under this definition;
    (e) Tributaries of waters identified in paragraphs (a)(d) of this 
definition;
    (f) The territorial sea; and
    (g) ``Wetlands'' adjacent to waters (other than waters that are 
themselves wetlands) identified in paragraphs (a)-(f) of this 
definition.
    Whole Effluent Toxicity (WET) means the aggregate toxic effect of 
an effluent measured directly by a toxicity test.
    Wetlands means those areas that are inundated or saturated by 
surface or ground water at a frequency and duration sufficient to 
support, and that under normal circumstances do support a prevalence of 
vegetation typically adapted for life in saturated soil conditions. 
Wetlands generally include swamps, marshes, bogs, and similar areas.
    2. Abbreviations when used in this permit are defined below:

cu. M/day or M3/day--cubic meters per day
mg/l--milligrams per liter
ug/l--micrograms per liter
lbs/day--pounds per day
kg/day--kilograms per day
Temp. [deg]C--temperature in degrees Centigrade
Temp. [deg]F--temperature in degrees Fahrenheit
Turb.--turbidity measured by the Nephelometric Method (NTU)
pH--a measure of the hydrogen ion concentration
CFS--cubic feet per second
MGD--million gallons per day
Oil & Grease--Freon extractable material
ml/l--milliliter(s) per liter
Cl2--total residual chlorine

[FR Doc. 02-23989 Filed 9-20-02; 8:45 am]
BILLING CODE 6560-50-M