[Federal Register Volume 68, Number 174 (Tuesday, September 9, 2003)]
[Notices]
[Pages 53166-53168]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-22934]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7555-7]


Proposed National Pollutant Discharge Elimination System (NPDES) 
Storm Water General Permits for Small Municipal Separate Storm Sewer 
Systems (MS4s) in New Mexico, Indian Country Lands in New Mexico and 
Indian Country Lands in Oklahoma and Preliminary Designation Decisions 
for Small MS4s Outside Urbanized Areas in New Mexico; Notice

AGENCY: Environmental Protection Agency (EPA), Region 6.

ACTION: Notice of availability for comment.

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SUMMARY: The Director of the EPA Region 6 Water Quality Protection 
Division is proposing to issue National Pollutant Discharge Elimination 
System (NPDES) general permits for storm water discharges from small 
municipal separate storm sewer systems (MS4s) located in the State of 
New Mexico, Indian Country Lands in New Mexico, and Indian Country 
Lands in Oklahoma. The proposed general permits would authorize the 
discharge of storm water and certain non-storm water discharges from 
municipal separate storm sewers. NPDES permit coverage for these 
discharges is required in accordance with section 402(p) of the 1987 
Amendments to the Clean Water Act (CWA) (33 U.S.C. 1342(p)) and EPA 
regulations. To obtain discharge authorization, operators of MS4s would 
be required to submit a Notice of Intent (NOI) to be covered by the 
proposed general permit. The NOI would need to include storm water 
management program information describing the best management practices 
(BMPs) which the permittee will implement to control pollutants in the 
discharges in accordance with the requirements of the CWA and 
measurable goals for their implementation. In accordance with 40 CFR 
122.34(a), the operator would have up to five years to develop and 
fully implement the storm water management program. The initial storm 
water management program submittal would likely consist of a 
combination of ongoing activities and schedules for developing and 
implementing additional activities to comply with the permit. Annual 
reporting would also be required to provide information on the status 
of the implementation of the storm water management program. This 
Notice announces the availability of the proposed general permits and 
fact sheet for public comment. Note that while the proposed general 
permits are structured as a single permit, and may be collectively 
referred to in the singular as the permit, they are actually three 
legally distinct permits each covering a different geographical area.
    Each of the legally separate and distinctly numbered proposed 
permits covers one of the areas listed in the table below. Parts 1-7 of 
the proposed general permit and the Appendices are common to all of the 
permits, while Part 8 of the permit contains the State, Indian Country 
Land or other area-specific conditions that make each of the permits 
unique. The proposed general permits will cover areas within Region 6 
where a State or Tribal permitting program has not been authorized 
under section 402(b) of the CWA. Indian Country includes all lands 
within Indian reservations, all dependent Indian communities, and 
Indian allotments. In Oklahoma it also includes lands held in trust for 
the benefit of Tribes. At this time, no regulated MS4s under EPA 
jurisdiction are located in Arkansas, Louisiana, or Texas, so permits 
for these areas are not being proposed by Region 6. Most MS4s in 
Arkansas, Louisiana, Oklahoma, and Texas are regulated by NPDES-
authorized State programs.

                              Permit Areas
------------------------------------------------------------------------
              Permit No.                        Areas of coverage
------------------------------------------------------------------------
OKS04000I.............................  Indian Country Lands within the
                                         State of Oklahoma.
NMS04000I.............................  Indian Country lands within the
                                         State of New Mexico, except
                                         Navajo Reservation lands and
                                         Ute Mountain Ute Reservation
                                         lands (permitted by EPA Regions
                                         9 and 8, respectively).
NMS040000.............................  The State of New Mexico, except
                                         Indian Country Lands.
------------------------------------------------------------------------

    This notice also announces the availability for public comment of 
the preliminary results of the Region's review of those New Mexico 
small MS4s with a population of between 10,000 and 50,000 and a 
population density of 1,000 or more per square mile that are located 
outside a Urbanized Area for possible designation as a regulated small 
MS4 (see 40 CFR 123.35(b)). Although EPA is not required to do so, EPA 
is inviting and will consider comments it receives regarding the small 
MS4 designation review.

DATES: The public comment period for the proposed general permits is 45 
days starting from the date of today's notice. Interested parties may 
submit comments on the proposed general permits to EPA Region 6 at the 
address below, no later than October 24, 2003. Any comments received by 
EPA Region 6 and EPA's response to these comments will become part of 
the administrative record for these general permits. The general 
permits will be effective on the date specified in the final general 
permit notice that will be published in the Federal Register and will 
expire five years from the effective date of the final permit.
    Comments on the small MS4 designation review process or preliminary 
decisions must be submitted by October 24, 2003, to the same address.

ADDRESSES: Comments on the proposed general permits should be sent to 
Docket No. 6WQ-03-SW01, Attn: Ms. Diane Smith, EPA Region 6, Water 
Quality Protection Division (6WQ-CA), 1445 Ross Avenue, Suite 1200, 
Dallas, Texas 75202-2733. Comments may also be submitted in electronic 
format (Wordperfect 9, MS Word 2000, or ASCII Text formats only, 
avoiding use of special characters) to the above address or via e-mail 
to [email protected]. No facsimiles (faxes) will be accepted. 
Comments on the designation review process or preliminary decisions 
must reference ``MS4 Designation Review.''

Public Meeting Information

    EPA Region 6 will be holding two informal public meetings which 
will include a presentation on the proposed general permits and a 
question and answer session. Advance notice of the times and dates for 
these meetings was provided in the Albuquerque Journal and the Daily 
Oklahoman newspapers on August 9, 2003, and via EPA's Web site at 
http://www.epa.gov/region6/6wq/npdes/sw/hot/index.htm. Because informal 
public meetings 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 proposed storm water general permit 
and in identifying the issues of concern. Written, but not oral, 
comments for the administrative record will be accepted at the public 
meetings. Written comments generated from what was learned at a public 
meeting (or from

[[Page 53167]]

discussion with someone who did attend) may also be submitted any time 
up to the end of the comment period.

Albuquerque, NM--September 11, 2003 @ 1 p.m.

    Albuquerque Technical Vocational Institute, Workforce Training 
Center, Conference Rooms 101 & 103, 5600 Eagle Rock Ave, NE., 
Albuquerque, NM 87113.

Oklahoma City, OK--September 15, 2003 @ 1 p.m.

    Metro Tech Conference Center, Auditorium, 1900 Springlake Drive, 
Oklahoma City, OK 73111.

Requests for a Public Hearing

    Interested persons may also request a public hearing pursuant to 40 
CFR 124.11 concerning the proposed general permit. Requests for a 
public hearing must be sent or delivered in writing to the same address 
for 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(a), the Regional 
Administrator will hold a public hearing if he finds, on the basis of 
requests, a significant degree of public interest in the proposed 
permit(s). If the Regional Administrator 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 
general permits at the public hearing.

FOR FURTHER INFORMATION CONTACT: Additional information concerning the 
proposed general permits and preliminary designation decisions may be 
obtained from Ms. Terry Branch at 214-665-6667 or [email protected] 
or Ms. Diane Smith at 214-665-2145 or [email protected]. The mail 
address for both Ms. Branch and Ms. Smith is EPA Region 6, Customer 
Assistance Branch (6WQ-CA), 1445 Ross Avenue, Suite 1200, Dallas, Texas 
75202-2733.

SUPPLEMENTARY INFORMATION: The proposed general permits and fact sheet, 
which also includes information on preliminary small MS4 designation 
decisions, may be obtained from the Internet via the EPA-Region 6 Web 
site at http://www.epa.gov/region6/6wq/npdes/sw/ms4/index.htm. The 
proposed general permits are accompanied by a fact sheet which sets 
forth principal facts and the significant factual, legal, and policy 
questions considered in the development of the proposed general 
permits. To obtain a hard copy of these documents or any other 
information in the administrative record, please contact Ms. Diane 
Smith or Ms. Terry Branch. Contact information is provided in the 
ADDRESSES section above. A reasonable fee may be charged for copying 
requests. When the final general permits are issued, notice will be 
published in the Federal Register. The final general permits will be 
effective on the date specified in the Federal Register and will expire 
five years from that date.
    Paperwork Reduction Act: This action does not impose any new 
information collection burden. These general permits do not impose any 
information collection requirements beyond those required by EPA 
regulations (40 CFR 122.26, 122.28, 122.30-.37, 122.41, and 122.48). 
However, the Office of Management and Budget (OMB) has previously 
approved the information collection requirements contained in these 
regulations under the provisions of the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq. and has assigned OMB control number 2040-0211, EPA 
ICR number 1820.03. A copy of each OMB approved Information Collection 
Request (ICR) may be obtained from the Collection Strategies Division; 
U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., 
NW., Washington, DC 20460, (202) 566-1672. Burden means the total time, 
effort, or financial resources expended by persons to generate, 
maintain, retain, or disclose or provide information to or for a 
Federal agency. This includes the time needed to review instructions; 
develop, acquire, install, and utilize technology and systems for the 
purposes of collecting, validating, and verifying information, 
processing and maintaining information, and disclosing and providing 
information; adjust the existing ways to comply with any previously 
applicable instructions and requirements; train personnel to be able to 
respond to a collection of information; search data sources; complete 
and review the collection of information; and transmit or otherwise 
disclose the information. An agency may not conduct or sponsor, and a 
person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number. The OMB 
control numbers for EPA's regulations are listed in 40 CFR part 9 and 
48 CFR chapter 15.
    Executive Order 12866: Under Executive Order 12866 (58 FR 51735, 
October 4, 1993) an agency must determine whether its regulatory action 
is ``significant'' and therefore subject to OMB review and the 
requirements of Executive Order 12866. This 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 (RFA): Issuance of an NPDES general 
permit is not subject to rulemaking requirements, including the 
requirement for a general notice of proposed rulemaking, under 5 U.S.C. 
553 (Administrative Procedure Act) or any other law, and is thus not 
subject to the RFA requirement to prepare a regulatory flexibility 
analysis. 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). 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

[[Page 53168]]

the extent that such regulations incorporate requirements specifically 
set forth in law).'') 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 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 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 proposed 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.''

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

    Dated: September 2, 2003.
Oscar Ramirez, Jr.,
Acting Director, Water Quality Protection Division, Region 6.
[FR Doc. 03-22934 Filed 9-8-03; 8:45 am]
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