[Federal Register Volume 68, Number 38 (Wednesday, February 26, 2003)]
[Notices]
[Pages 8902-8903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4521]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7455-5]


Public Notice of Draft National Pollutant Discharge Elimination 
System (NPDES) General Permit for Storm Water Discharges from Federal 
Facility Small Municipal Separate Storm Sewer Systems (MS4s) in 
Colorado

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of availability of proposed NPDES general permit.

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SUMMARY: Region VIII of EPA is hereby giving notice of its tentative 
determination to issue an NPDES general permit for regulated storm 
water discharges from small municipal separate storm sewer systems 
(MS4s). The general permit is applicable to Federal Facilities within 
the State of Colorado. Only Federal Facilities located in urbanized 
areas (as defined by the 2000 U.S. Census) within the State of Colorado 
must apply. Federal facilities that are currently known to be located 
within Colorado urbanized areas, and will need to apply for coverage 
under the general permit include: Fort Carson; the General Services 
Administration's Denver Federal Center; Peterson Air Force Base; the 
U.S. Air Force Academy; the U.S. Department of Commerce--National 
Institute of Standards and Technology, Boulder Campus; the U.S. Bureau 
of Prisons Federal Correctional Institution, Englewood; and the 
Veterans Affairs Medical Center Denver. Additional Federal Facilities 
may need to apply for permit coverage at a later date based on 
subsequent Census data. This notice announces the availability of the 
proposed general permit and fact sheet for public comment.
    NPDES permit coverage is required for small MS4s in accordance with 
final EPA regulations for Phase II storm water discharges (64 FR 68722, 
December 8, 1999). Operators of Phase II-designated small MS4s 
(regulated small MS4s) are required to submit a Notice of Intent (NOI) 
to EPA Region VIII to be covered under the general permit.
    In accordance with the general permit, regulated small MS4 
operators must develop, implement, and enforce a program designed to 
reduce the discharge of pollutants from their MS4s to the maximum 
extent practicable (MEP) to protect water quality and to satisfy the 
appropriate water quality requirements of the Clean Water Act. The 
small MS4 program must include the following six minimum control 
measures: public education and outreach; public involvement and 
participation; illicit discharge detection and elimination; 
construction site runoff control; post-construction runoff control; and 
pollution prevention/ good housekeeping. The rule assumes the use of 
narrative, rather than numeric, effluent limitations achieved through 
the implementation of best management practices (BMPs). Operators must 
establish BMPs and measurable goals for each minimum measure in the 
permit application. However, applicants will have up to five years to 
fully develop and implement their storm water management program.

------------------------------------------------------------------------
                                                       Areas covered by
              State                   Permit No.      the general permit
------------------------------------------------------------------------
Colorado........................  COR042000.........  Federal Facilities
                                                       in the State of
                                                       Colorado, except
                                                       those located in
                                                       Indian Country.
------------------------------------------------------------------------


DATES: Public comments on this proposal must be received or postmarked 
no later than March 28, 2003. A public hearing may be requested within 
the comment period concerning the proposed permit.

ADDRESSES: Public comments or requests for a public hearing should be 
sent to: Greg Davis (8EPR-EP); Attention: NPDES Permits; U.S. EPA, 
Region VIII; 999 18th Street, Suite 300; Denver, CO 80202-2466. Public 
comments will also be accepted via electronic mail (E-mail) at 
[email protected].

Public Comment Period

    Public comments are invited. Comments must be received or 
postmarked no later than March 28, 2003. Each comment should cite the 
page number and, where possible, the section(s) and/or paragraph(s) in 
the draft permit or Fact Sheet to which each comment refers. Commenters 
should use a separate paragraph for each issue discussed. Comments must 
be sent to the address given above in the ADDRESSES section.

FOR FURTHER INFORMATION CONTACT: For a copy of the draft permit and 
Fact Sheet or for further information on the draft permit, contact 
either Greg Davis (303) 312-6082 ([email protected]) or Vern Berry, 
(303) 312-6234 ([email protected]), or at the address above in the 
Addresses section. Copies of the draft permit and Fact Sheet may be 
downloaded from the EPA Region VIII Web site at http://www.epa.gov/

[[Page 8903]]

region8/water/stormwater/downloads.html.

SUPPLEMENTARY INFORMATION: When the general permit is issued, it will 
be published by reference in the Federal Register. The general permit 
will be effective on the date specified in the Federal Register with an 
expiration five years from such date. Region VIII is not issuing NPDES 
General Permits for Storm Water Discharges from Small Municipal 
Separate Storm Sewer Systems (MS4s) located in Indian country. No MS4s 
in Indian country have been determined to require small MS4 permit 
coverage at this time.
    Administrative Record: The proposed general permit and other 
related documents in the administrative record are on file in the EPA 
Region VIII NPDES file room and may be inspected upon request any time 
between 8 a.m. and 4 p.m., Monday through Friday, excluding legal 
holidays, at the address provided in the Addresses section above. 
Requests to view these files in the Region VIII NPDES file room should 
be sent to Greg Davis by phone at 303-312-6082, or by e-mail at 
[email protected].

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. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may 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; create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or 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 waived review of NPDES general permits under the terms of 
Executive Order 12866.

Regulatory Flexibility Act

    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 requirement to prepare an IRFA.
    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.

Unfunded Mandates Reform Act

    Section 201 of the Unfunded Mandates Reform Act (UMRA), Public Law 
104-4, generally requires Federal agencies to assess the effects of 
their ``regulatory actions'' on 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.

    Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

    Dated: February 14, 2003.
Stephen S. Tuber,
Acting Assistant Regional Administrator, Office of Partnerships and 
Regulatory Assistance.
[FR Doc. 03-4521 Filed 2-25-03; 8:45 am]
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