[Federal Register Volume 67, Number 245 (Friday, December 20, 2002)]
[Notices]
[Pages 78116-78120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-32134]



[[Page 78115]]

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Part IV





Environmental Protection Agency





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Proposed National Pollutant Discharge Elimination System (NPDES) 
General Permit for Storm Water Discharges From Construction Activities; 
Notice

  Federal Register / Vol. 67, No. 245 / Friday, December 20, 2002 / 
Notices  

[[Page 78116]]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7424-9]


Proposed National Pollutant Discharge Elimination System (NPDES) 
General Permit for Storm Water Discharges From Construction Activities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of availability for comment.

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SUMMARY: EPA Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10 today are proposing 
EPA's NPDES general permits for discharges from large and small 
construction activity. Hereinafter, the terms ``permit'' or 
``construction general permit'' or ``CGP'' will replace ``permits.'' 
Today's proposed permit will replace the existing permit covering large 
construction sites in EPA Regions 1, 2, 3, 7, 8, 9 and 10 that expires 
on February 17, 2003 and the permit covering large construction sites 
in EPA Region 6 that expires July 6, 2003. Today's proposed permit 
would also cover large construction sites in EPA Region 5. In addition, 
today's proposed permit incorporates coverage of small construction 
activity in EPA Regions 1, 2, 3, 5, 6, 7, 8, 9 and 10. Today's proposed 
permit is similar to the 1998 permits and will authorize the discharge 
of pollutants in storm water runoff associated with construction 
activities in accordance with the terms and conditions described 
therein.
    Note: EPA is also announcing its intention to propose, in a 
subsequent rulemaking, to delay the permit authorization deadline set 
forth in the NPDES regulations as it may relate to oil and gas 
construction activity that disturbs between one and five acres of land. 
The Agency intends to propose to delay this deadline in order to better 
evaluate the impact of the permit requirements on the oil and gas 
industry and the best management practices to prevent contamination of 
storm water runoff, while analyzing the scope and effect of 33 U.S.C. 
1342 (l)(2) and other provisions of the Clean Water Act.

DATES: Comments on the proposed general permit must be postmarked by 
February 3, 2003.

ADDRESSES: Comments may be submitted electronically, by mail, or 
through hand delivery/courier. Send written comments to: Follow the 
detailed instructions as provided in Section I.B.

FOR FURTHER INFORMATION CONTACT: For further information on the 
proposed NPDES general permit, contact the appropriate EPA Regional 
Office listed in Section I.F, or contact Jack Faulk, Office of 
Wastewater Management, Office of Water, EPA Headquarters at tel.: 202-
564-0768 or e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. How Can I Get Copies of This Document and Other Related Information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. OW-2002-0055. The official public docket is 
the collection of materials that is available for public viewing at the 
Water Docket in the EPA Docket Center, (EPA/DC) EPA West, Room B102, 
1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the Water 
Docket is (202) 566-2426.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/to submit or view public 
comments, access the index listing of the contents of the official 
public docket, and to access those documents in the public docket that 
are available electronically. Once in the system, select ``search,'' 
then key in the appropriate docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. Although not all 
docket materials may be available electronically, you may still access 
any of the publicly available docket materials through the docket 
facility identified in Section I.A.1.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the Docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.

B. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate docket identification number in the subject line on the 
first page of your comment. Please ensure that your comments are 
submitted within the specified comment period. Comments received after 
the close of the comment period will be marked ``late.'' EPA is not 
required to consider these late comments.
    EPA seeks comment on the proposed permit and on the accompanying 
fact sheet. EPA is not, at this time, seeking comment on a possible 
proposed revision of the permit application deadline for storm water 
discharges associated with small construction activity in 40 CFR 
122.26(e)(8) as it may relate to oil and gas construction activity that 
disturbs between one and five acres of land. When EPA proposes to make 
such a revision, the Agency will seek comment on such proposal at that 
time.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD-ROM you submit, and in any cover letter accompanying 
the disk or

[[Page 78117]]

CD-ROM. This ensures that you can be identified as the submitter of the 
comment and allows EPA to contact you in case EPA cannot read your 
comment due to technical difficulties or needs further information on 
the substance of your comment. EPA's policy is that EPA will not edit 
your comment, and any identifying or contact information provided in 
the body of a comment will be included as part of the comment that is 
placed in the official public docket, and made available in EPA's 
electronic public docket. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment.
    i. EPA Dockets. Your use of EPA's electronic public docket to 
submit comments to EPA electronically is EPA's preferred method for 
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. 
Once in the system, select ``search,'' and then key in Docket ID No. 
OW-2002-0055. The system is an ``anonymous access'' system, which means 
EPA will not know your identity, e-mail address, or other contact 
information unless you provide it in the body of your comment.
    ii. E-mail. Comments may be sent by electronic mail (e-mail) to [email protected], Attention Docket ID No. OW-2002-0055. In contrast to 
EPA's electronic public docket, EPA's e-mail system is not an 
``anonymous access'' system. If you send an e-mail comment directly to 
the Docket without going through EPA's electronic public docket, EPA's 
e-mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    iii. Disk or CD-ROM. You may submit comments on a disk or CD-ROM 
that you mail to the mailing address identified in Section I.B.2. These 
electronic submissions will be accepted in WordPerfect or ASCII file 
format. Avoid the use of special characters and any form of encryption.
    2. By Mail. Send the original and three copies of your comments to: 
Water Docket, Environmental Protection Agency, Mailcode: 4101T, 1200 
Pennsylvania Ave., NW., Washington, DC, 20460, Attention Docket ID No. 
OW-2002-0055.
    3. By Hand Delivery or Courier. Deliver your comments to: Public 
Reading Room, Room B102, EPA West Building, 1301 Constitution Avenue, 
NW., Washington, DC 20004, Attention Docket ID No. OW-2002-0055. Such 
deliveries are only accepted during the Docket's normal hours of 
operation as identified in Section I.A.1.

C. Public Hearings

    EPA has not scheduled any public hearings to receive public comment 
concerning the proposed permits in view of the more informal public 
meetings that will be held and limited attendance at previous hearings 
which have been held related to the construction general permit. All 
persons will continue to have the right to provide written comments at 
any time during the public comment period. However, interested persons 
may request a public hearing pursuant to 40 CFR 124.12 concerning the 
proposed permit. Requests for a public hearing must be sent or 
delivered in writing to the same address as provided above for public 
comments prior to the close of the comment period. Requests for a 
public hearing must state the nature of the issues proposed to be 
raised in the hearing. Pursuant to 40 CFR 124.12, EPA shall hold a 
public hearing if it finds, on the basis of requests, a significant 
degree of public interest in a public hearing on the proposed permit. 
If EPA decides to hold a public hearing, a public notice of the date, 
time and place of the hearing will be made at least 30 days prior to 
the hearing. Any person may provide written or oral statements and data 
pertaining to the proposed permit at the public hearing.

D. Public Meetings

    EPA will be holding a series of more informal public meetings which 
will include a presentation on the draft permits and a question and 
answer session. Due to an informal public meeting's ability to 
accommodate group discussion and question and answer sessions, public 
meetings have been used for many storm water general permits and appear 
to be more valuable than formalized public hearings in helping the 
public understand a draft storm water permit and identify the issues of 
concern. Written, but not oral, comments for the official permit record 
will be accepted at the public meetings. Comments generated from what 
was learned at a public meeting (or discussion with someone who did 
attend) can be submitted any time up to the end of the comment period. 
More information on these meetings will be available on the Internet at 
http://www.epa.gov/npdes/stormwater and on the various EPA Regional Web 
sites (e.g. http://www.epa.gov/region6/sws for EPA Region 6, http://www.epa.gov/r10earth/stormwater.htm for EPA Region 10) as soon as dates 
and locations have been finalized.

E. Finalizing the Permit

    After the close of the public comment period, EPA will issue a 
final permit decision. This decision will not be made until after all 
public comments have been considered and appropriate changes made to 
the permit. A Responses to Comments will be included as part of the 
final permit decision.

F. Who Are the EPA Regional Contacts for This Proposed Permit?

    For EPA Region 1, contact Thelma Murphy at tel.: (617) 918-1615 or 
e-mail at [email protected].
    For EPA Region 2, contact Karen O'Brien at tel.: (212) 637-3717 or 
e-mail at [email protected] or for Puerto Rico, Sergio Bosques at 
tel.: (787) 977-5838 or e-mail at [email protected].
    For EPA Region 3, contact William Toffel at tel.: (215) 814-5706 or 
[email protected].
    For EPA Region 5, contact Brian Bell at tel.: (312) 886-0981 or e-
mail at [email protected].
    For EPA Region 6, contact Brent Larsen at tel.: (214) 665-7523 or 
e-mail at: [email protected].
    For EPA Region 7, contact Mark Matthews at tel.: (913) 551-7635 or 
e-mail at: [email protected].
    For EPA Region 8, contact Vern Berry at tel.: (303) 312-6234 or e-
mail at: [email protected].
    For EPA Region 9, contact Eugene Bromley at tel.: (415) 972-3510 or 
e-mail at [email protected].
    For EPA Region 10, contact Misha Vakoc at tel.: (206) 553-6650 or 
e-mail at [email protected].

II. Background

A. Statutory and Regulatory History

    Section 405 of the Water Quality Act of 1987 (WQA) added section 
402(p) of the Clean Water Act (CWA), which directed the Environmental 
Protection Agency (EPA) to develop a phased approach to regulate storm 
water discharges under the National Pollutant Discharge Elimination 
System (NPDES) program. EPA published a final regulation on the first 
phase on this program on November 16, 1990, establishing permit 
application requirements for ``storm water discharges associated with 
industrial activity.'' EPA defined the term ``storm water discharge 
associated with industrial activity'' in a comprehensive manner to 
cover a wide variety of

[[Page 78118]]

facilities. Construction activities that disturb at least five acres of 
land and have point source discharges to waters of the U.S. are defined 
as an ``industrial activity'' per 40 CFR 122.26(b)(14)(x).
    Phase II of the storm water program was published in the Federal 
Register on December 8, 1999. Phase II includes sites disturbing 
greater that one acre and less than five acres as well as sites less 
than one acre of total land area that are part of a larger common plan 
of development or sale if the larger common plan will ultimately 
disturb equal to or greater than one and less than five acres. Small 
construction activity is defined per 40 CFR 122.26(b)(15)(i).
    In developing the Phase II storm water regulations, EPA conducted 
analysis of the potential impacts of the regulation on the National 
economy and also analyzed impacts on small businesses. These impacts 
focused on implementation of sediment and erosion control practices or 
best management practices to reduce pollutants commonly associated with 
construction storm water discharges. In performing these analyses, EPA 
considered affected industrial sectors, including the oil and gas 
industry. EPA determined that few, if any, oil and gas exploration 
sites would be affected by Phase II and impacts on the accuracy of 
Phase II rule cost estimates were unlikely to be significant. 
Therefore, EPA did not include oil and gas exploration sites in the 
Final Draft of the Economic Analysis of the Phase II Final Rule. Since 
January 2002, information has become available indicating that close to 
30,000 oil and gas sites may be affected by the Phase II storm water 
regulations. In the spirit of Executive Order 13211, which directs EPA 
to consider the impact of its actions on energy-related production 
activities, the Agency believes it is important to review the economic 
analysis of the Phase II rule to determine the impact on the oil and 
gas industry. In evaluating the impact, the Agency will work with 
states, industry, and other entities to gather and evaluate data on the 
development and use of appropriate best management practices for the 
oil and gas industry. EPA will also continue to review the scope and 
effect of 33 U.S.C. 1342(l)(2), relating to oil and gas exploration 
activities, and other provisions of the Clean Water Act. EPA intends in 
the very near future to propose to extend the March 10, 2003, permit 
authorization deadline for Phase II oil and gas facilities to be 
covered by a storm water permit.

B. Summary of Significant Changes From 1998 Construction General Permit

    This permit replaces the previous Construction General Permits 
which were issued for a five-year term by various EPA Regions in 
February 1998 (63 FR 7858) and July 1998 (63 FR 36490). The 
organization and numbering of today's draft CGP has been revised 
slightly from the 1998 CGP to more clearly present permittee 
responsibilities. In addition, following is a list of significant 
changes included in the draft CGP as compared to the February 1998 CGP. 
These changes are discussed in more detail in the CGP fact sheet.
1. Change in Permit Areas Covered
i. Additions
    a. Indian Country within the States of Michigan, Wisconsin, 
Minnesota, Louisiana, Oklahoma, New Mexico, and Texas,
    b. State of New Mexico,
    c. Discharges in the State of Oklahoma that are not under the 
authority of the Oklahoma Department of Environmental Quality, 
including activities associated with oil and gas exploration, drilling, 
operations, and pipelines (includes SIC codes 1311, 1381, 1382, 1389, 
and 5171), and point source discharges associated with agricultural 
production, services, and silviculture, and
    d. Discharges in the State of Texas that are not under the 
authority of the Texas Commission on Environmental Quality (formerly 
TNRCC), including activities associated with the exploration, 
development, or production of oil or gas or geothermal resources, 
including transportation of crude oil or natural gas by pipeline.
ii. Deletions
    a. State of Maine,
    b. Indian Country within the State of Maine.
    c. State of Arizona.
    2. Small construction activities (those disturbing one to five 
acres) added to eligibility provisions.
    3. Uncontaminated excavation dewatering added as an allowable non-
storm water discharge.
    4. Eligibility provisions for discharges threatening water quality 
clarified.
    5. Restrictions on and documentation of discharges to waters with 
Total Maximum Daily Loads (TMDLs) added.
    6. Eligibility requirements specific to the National Historic 
Preservation Act added.
    7. Small construction waiver availability added.
    8. Discharge authorization timeframe changed from 48 hours after 
NOI submission to immediately upon submission of a complete and 
accurate NOI.
    9. NOI content requirements (and draft revised NOI Form) modified 
to include:
    i. Nature of construction project,
    ii. Name of Indian reservation or affiliated Tribe,
    iii. Address of SWPPP location changed from optional to required,
    iv. Receiving water name clarified to indicate MS4 name may be 
appropriate response,
    v. Identification of whether site is part of larger common plan and 
if site is large or small, and
    vi. National Historic Preservation Act eligibility certification.
    10. Notification of potential waiting periods for permit 
authorization in certain areas as necessitated for the protection of 
endangered or threatened species added.
    11. Clarification that partial final stabilization is acceptable in 
certain instances.
    12. Elimination of the need to estimate runoff coefficient of the 
site for pre- and post-construction.
    13. Option for weekly site inspections rather than biweekly 
inspections with followup inspections after each rain event added.
    14. Inspection requirements for linear construction projects 
clarified.
    15. Procedures for addressing non-attainment of water quality 
standards added.
    16. Standard conditions revised consistent with 40 CFR 122.41.
    17. Delegation of signatory authorities for all reports other than 
NOIs, can be retained on-site in the SWPPP rather than submitted to 
EPA.

C. Summary of Terms and Conditions of Proposed General Permit

1. Discharges Covered
    Operators of large and small construction activities within the 
areas listed below may be eligible to obtain coverage under this permit 
for allowable storm water and non-storm water discharges:
    Region 1: The Commonwealth of Massachusetts and the State of New 
Hampshire; Indian Country in the Commonwealth of Massachusetts and the 
States of Rhode Island and Connecticut; and Federal facilities in 
Vermont.
    Region 2: The Commonwealth of Puerto Rico and Indian Country in the 
State of New York.
    Region 3: District of Columbia; and Federal facilities in the State 
of Delaware.

[[Page 78119]]

    Region 5: Indian Country in the States of Michigan, Minnesota, and 
Wisconsin.
    Region 6: The State of New Mexico; Indian Country in the States of 
Louisiana, Oklahoma, Texas, and New Mexico (except Navajo Reservation 
Lands [see Region 9] and Ute Mountain Reservation Lands (see Region 
8)); discharges in the State of Oklahoma that are not under the 
authority of the Oklahoma Department of Environmental Quality, 
including activities associated with oil and gas exploration, drilling, 
operations, and pipelines (includes SIC codes 1311, 1381, 1382, 1389, 
and 5171), and point source discharges associated with agricultural 
production, services, and silviculture; and discharges in the State of 
Texas that are not under the authority of the Texas Commission on 
Environmental Quality (formerly the Texas Natural Resource Conservation 
Commission), including activities associated with the exploration, 
development, or production of oil or gas or geothermal resources, 
including transportation of crude oil or natural gas by pipeline.
    Region 7: Indian Country in the States of Iowa, Kansas, and 
Nebraska (except Pine Ridge Reservation Lands (see Region 8)).
    Region 8: Federal facilities in Colorado; Indian Country in 
Colorado (as well as the portion of the Ute Mountain Reservation 
located in New Mexico), Montana, North Dakota (as well as that portion 
of the Standing Rock Reservation located in South Dakota and excluding 
the portion of the lands within the former boundaries of the Lake 
Traverse Reservation, which is covered under the permit for areas of 
South Dakota), South Dakota (as well as the portion of the Pine Ridge 
Reservation located in Nebraska and the portion of the lands within the 
former boundaries of the Lake Traverse Reservation located in North 
Dakota and excluding the Standing Rock Reservation which is covered 
under the permit for areas of North Dakota), Utah (except Goshute and 
Navajo Reservation lands (see Region 9)), and Wyoming.
    Region 9: The Islands of American Samoa and Guam, Johnston Atoll, 
Midway/Wake Islands and Commonwealth of the Northern Mariana Islands; 
Indian Country in Arizona (as well as Navajo Reservation lands in New 
Mexico and Utah), California, and Nevada (as well as the Duck Valley 
Reservation in Idaho, the Fort McDermitt Reservation in Oregon, and the 
Goshute Reservation in Utah).
    Region 10: The States of Alaska and Idaho; Indian Country in 
Alaska, Idaho (except Duck Valley Reservation (see Region 9)), 
Washington, and Oregon (except for Fort McDermitt Reservation (see 
Region 9)); and Federal facilities in Washington.
2. Limitations on Coverage
    The proposed general permit includes a number of eligibility 
restrictions including: post-construction discharges; discharges which 
may adversely affect endangered or threatened species and critical 
habitat, or historic properties; discharges which may cause or 
contribute to exceedances of water quality standards; and discharges 
that are inconsistent with any applicable approved total maximum daily 
loads (TMDLs). Construction operators that do not meet the eligibility 
requirements of the proposed general permit would be required to submit 
an individual permit application or seek coverage under any alternate 
general permit, if available.
3. Deadlines and Permit Application Process
    To obtain discharge authorization under the proposed general 
permit, dischargers would be required to submit a notice of intent 
(NOI) requesting discharge authorization. The NOI would be required to 
include basic information about the construction project (e.g., 
operator name, site name, and site address) and certification that a 
storm water pollution prevention plan (SWPPP) has been prepared for the 
site describing the best management practices that the discharger will 
implement to control pollutants in the discharges in accordance with 
the requirements of the CWA. NOI due dates are as follows:
i. Large Construction ( 5 acres)
    a. Ongoing projects as of the effective date of the permit: Within 
90 days of the effective date of this permit (or by July 7, 2003 for 
facilities electing to remain covered by the 1998 Region 6 permit until 
it expires), unless permittee is eligible to submit a Notice of 
Termination (NOT) from coverage under a previous NPDES permit before 
the 90th day (or by July 7, 2003 for facilities electing to remain 
covered by the 1998 Region 6 permit until it expires), provided that 
the NOT is submitted in compliance with the permit requirements.
    b. New projects after the effective date of the permit: Prior to 
commencement of construction activities.
ii. Small Construction (1-5 acres)
    a. Ongoing projects as of March 10, 2003: By March 10, 2003.
    b. New projects after the effective date of the permit: Prior to 
commencement of construction activities.
4. Storm Water Pollution Prevention Plans
    The proposed general permit would require that all operators 
covered by the permit develop and implement a SWPPP. The SWPPP would be 
the principal means through which dischargers comply with the CWA's 
requirement to control pollutants in their discharges. All SWPPPs would 
be required to be developed in accordance with sound engineering 
practices and developed specific to the site. These SWPPPs would be 
required to be prepared prior to commencement of construction 
activities and then updated as appropriate. Specific elements to be 
addressed in the SWPPP include:
    i. Pollution Prevention Plan Contents: Site and Activity 
Description,
    ii. Pollution Prevention Plan Contents: Controls to Reduce 
Pollutants,
    iii. Non Storm Water Discharge Management,
    iv. Maintenance of Controls,
    v. Documentation of Permit Eligibility Related to Endangered 
Species,
    vi. Documentation of Permit Eligibility Related to Historic Places,
    vii. Copy of Permit Requirements,
    viii. Applicable State, Tribal, or Local Programs,
    ix. Inspections,
    x. Maintaining an Updated SWPPP,
    xi. Signature, Plan Review and Making Plans Available,
    xii. Management Practices,
    xiii. Documentation of Permit Eligibility Related to Impaired 
Waters,
5. Permit Appeal Procedures
    Within 120 days following notice of EPA's final decision for the 
general permit under 40 CFR 124.15, any interested person may appeal 
the permit in the Federal Court of Appeals in accordance with Section 
509(b)(1) of the CWA. Persons affected by a general permit may not 
challenge the conditions of a general permit as a right in further 
Agency proceedings. They may instead either challenge the general 
permit in court, or apply for an individual permit as specified at 40 
CFR 122.21 (and authorized at 40 CFR 122.28), and then petition the 
Environmental Appeals Board to review any conditions of the individual 
permit (40 CFR 124.19 as modified on May 15, 2000, 65 FR 30886).

III. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735 (October 4, 1993)) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order.

[[Page 78120]]

The Order defines ``significant regulatory action'' as one that is 
likely to result in a rule that may: (1) Have an annual effect on the 
economy of $100 million or more or adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local, or Tribal 
governments or communities; (2) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order. OMB has exempted review of NPDES general permits 
under the terms of Executive Order 12866.

IV. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rule-making requirements under the Administrative 
Procedures Act or any other statute unless the agency certifies that 
the rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    Issuance of an NPDES general permit is not subject to rulemaking 
requirements, including the requirement for a general notice of 
proposed rulemaking, under APA section 553 or any other law, and is 
thus not subject to the RFA requirements.
    The APA defines two broad, mutually exclusive categories of agency 
action--``rules'' and ``orders.'' Its definition of ``rule'' 
encompasses ``an agency statement of general or particular 
applicability and future effect designed to implement, interpret, or 
prescribe law or policy or describing the organization, procedure, or 
practice requirements of an agency * * *'' APA section 551(4). Its 
definition of ``order'' is residual: ``a final disposition * * * of an 
agency in a matter other than rule making but including licensing.'' 
APA section 551(6) (emphasis added). The APA defines ``license'' to 
``include * * * an agency permit * * *'' APA section 551(8). The APA 
thus categorizes a permit as an order, which by the APA's definition is 
not a rule. Section 553 of the APA establishes ``rule making'' 
requirements. The APA defines ``rule making'' as ``the agency process 
for formulating, amending, or repealing a rule.'' APA section 551(5). 
By its terms, then, section 553 applies only to ``rules'' and not also 
to ``orders,'' which include permits.

V. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their ``regulatory actions'' on State, local, and tribal 
governments and the private sector. UMRA uses the term ``regulatory 
actions'' to refer to regulations. (See, e.g., UMRA section 201, ``Each 
agency shall * * * assess the effects of Federal regulatory actions * * 
* (other than to the extent that such regulations incorporate 
requirements specifically set forth in law)'' (emphasis added)). UMRA 
section 102 defines ``regulation'' by reference to 2 U.S.C. 658 which 
in turn defines ``regulation'' and ``rule'' by reference to section 
601(2) of the Regulatory Flexibility Act (RFA). That section of the RFA 
defines ``rule'' as ``any rule for which the agency publishes a notice 
of proposed rulemaking pursuant to section 553(b) of [the 
Administrative Procedure Act (APA)], or any other law. * * *''
    As discussed in the RFA section of this notice, NPDES general 
permits are not ``rules'' under the APA and thus not subject to the APA 
requirement to publish a notice of proposed rulemaking. NPDES general 
permits are also not subject to such a requirement under the CWA. While 
EPA publishes a notice to solicit public comment on draft general 
permits, it does so pursuant to the CWA section 402(a) requirement to 
provide ``an opportunity for a hearing.'' Thus, NPDES general permits 
are not ``rules'' for RFA or UMRA purposes.

VI. Paperwork Reduction Act

    EPA has reviewed the requirements imposed on regulated facilities 
resulting from the proposed construction general permit under the 
Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. The information 
collection requirements of the construction general permit for large 
construction activities have already been approved by the Office of 
Management and Budget (OMB) (OMB Control No. 2040-0188) in previous 
submissions made for the NPDES permit program under the provisions of 
the Clean Water Act. Information collection requirements of the 
construction general permit for small construction activities were 
submitted to OMB (OMB Control No. 2040-0211) for review and approval 
and will be published in a separate Federal Register Notice.
    1. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

    Dated: December 9, 2002.
Linda M. Murphy,
Director, Office of Ecosystem Protection, EPA Region 1.
    2. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

    Dated: December 6, 2002.
Walter E. Mugdan,
Director, Division of Environmental Planning and Protection, EPA Region 
2.
    3. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

    Dated: December 10, 2002.
Victoria Binetti,
Acting Director, Water Protection Division, EPA Region 3.
    4. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

    Dated: December 5, 2002.
Mary P. Tyson,
Acting Director, Water Division, EPA Region 5.
    5. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

    Dated: December 11, 2002.
Miguel I. Flores,
Director, Water Quality Protection Division, EPA Region 6.
    6. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

    Dated: December 9, 2002.
Leo Alderman,
Director, Water, Wetlands & Pesticides Division, EPA Region 7.
    7. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

    Dated: December 11, 2002.
Kerrigan G. Clough,
Assistant Regional Administrator, Office of Partnerships and Regulatory 
Assistance, EPA Region 8.
    8. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

    Dated: December 5, 2002.
John Kemmerer,
Acting Director, Water Division, EPA Region 9.
    9. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

    Dated: December 11, 2002.
Randall F. Smith,
Director, Office of Water, EPA Region 10.
[FR Doc. 02-32134 Filed 12-19-02; 8:45 am]
BILLING CODE 6560-50-P