[Federal Register Volume 68, Number 175 (Wednesday, September 10, 2003)]
[Notices]
[Pages 53374-53376]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23062]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7552-7]


Draft National Pollutant Discharge Elimination System (NPDES) 
General Permit for Storm Water Discharges From Construction Activities 
That Are Classified as Associated With Industrial Activity

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: Section 405 of the Water Quality Act of 1987 added section 
402(p) to the Clean Water Act (CWA) which requires the EPA to develop a 
phased approach to regulating storm water discharges under the NPDES 
program. EPA published a final regulation on November 16, 1990, (55 FR 
47990) establishing permit application requirements for storm water 
discharges associated with industrial activity and for discharges from 
municipal separate storm sewer systems serving a population of 100,000 
or more. In the permit application regulations, EPA defined the term 
``storm water discharge associated with industrial activity'' in a 
comprehensive manner to cover a wide variety of facilities. This 
definition greatly expanded the number of industrial facilities subject 
to the NPDES program.
    EPA Region 4 published a final NPDES general permit for storm water 
discharges from construction activities that are classified as 
``associated with industrial activity'' on March 31, 1998, (63 FR 
15622) and modified the permit on April 28, 2000 (64 FR 25122). The 
general permit established Notice of Intent (NOI) requirements, special 
conditions, requirements to develop and implement storm water pollution 
prevention plans (SWPPPs), monitoring requirements for discharges to 
303(d) listed water bodies, and requirements to conduct site 
inspections for facilities with discharges authorized by the permit. 
This notice requests comments on the draft reissuance of the above 
referenced general permit for discharges of storm water from 
construction activities ``associated with industrial activity'' on 
Indian Country lands where EPA Region 4 is the permit issuing 
authority.

DATES: Comments relative to this draft permit are not required; 
however, if you wish to submit comments, the comments must be received 
by November 10, 2003.

ADDRESSES: Persons wishing to comment on or object to any aspects of 
this permit reissuance or wishing to request a public hearing, are 
invited to submit the same in writing within sixty (60) days of this 
notice to the Water Management Division, United States Environmental 
Protection Agency, Region 4, Atlanta Federal Center, 61 Forsyth Street, 
SW., Atlanta, GA 30303-8960, Attention: Ms. Ann Brown.

FOR FURTHER INFORMATION CONTACT: The proposed NPDES general permit, 
fact sheet and other relevant documents are on file and may be 
inspected any time between 9 a.m. and 4 p.m., Monday through Friday at 
the address shown below. Copies of the draft NPDES general permit, fact 
sheet or other relevant documents may be obtained by writing the United 
States Environmental Protection Agency, Region 4, Atlanta Federal 
Center, 61 Forsyth Street, SW., Atlanta, GA 30303-8960, Attention: Ms. 
Ann Brown, or calling (404) 562-9288. In addition, copies of the draft 
NPDES general permit, fact sheet or other relevant documents may be 
downloaded at www.epa.gov/region4/water/permits/stormwater.html.
    Contact Mr. Floyd Wellborn, telephone number (404) 562-9296, or Mr. 
Michael Mitchell, telephone number (404) 562-9303, or at the following 
address: United States Environmental Protection Agency, Region 4, Water 
Management Division, NPDES and Biosolids Permits Section, Atlanta 
Federal Center, 61 Forsyth Street, SW., Atlanta, GA 30303-8960.

SUPPLEMENTARY INFORMATION:

I. Procedures for Reaching a Final Permit Decision

    Pursuant to 40 CFR 124.13, any person who believes any condition of 
the permit is inappropriate must raise all reasonably ascertainable 
issues and submit all reasonably available arguments in full, 
supporting their position, by the close of the comment period. All 
comments on the proposed NPDES general permit received within the 60-
day period will be considered in the formulation of final 
determinations regarding the permit reissuance.
    After consideration of all written comments, the requirements and 
policies in the Act, and all appropriate regulations, the EPA Regional 
Administrator will make a

[[Page 53375]]

determination regarding the general permit reissuance. If the 
determination is substantially unchanged from those announced by this 
notice, the Administrator will so notify all persons submitting written 
comments. If the determination is substantially changed, the 
Administrator may issue a public notice indicating the revised 
determination.
    A formal hearing is available to challenge any NPDES permit issued 
according to the regulations at 40 CFR 124.15, except for a general 
permit as cited by 40 CFR 124.71. 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, as authorized at 40 CFR 122.28, 
and then request a formal hearing on the issuance or denial of an 
individual permit.

II. Background

A. Statutory and Regulatory History

    Section 405 of the Water Quality Act of 1987 added section 402(p) 
to the CWA, which directed the EPA to develop a phased approach to 
regulate the storm water discharges under the National Pollutant 
Discharge Elimination System (NPDES) program. EPA published a final 
regulation on the first phase of this program on November 16, 1990, 
establishing permit application requirements for ``storm water 
discharges associated with industrial activity.'' Construction 
activities that disturb at least five acres of land or are part of a 
larger plan of development and have point source discharges to waters 
of the U.S., are defined in 40 CFR 122.26(b)(14)(x) as an ``industrial 
activity.'' Upon the advent of the Phase II storm water regulations, 
these activities became referred to as large construction activities.
    Phase II of the storm water program was published in the Federal 
Register on December 8, 1999. Phase II includes sites disturbing at 
least one acre of land and less than five acres, as well as sites less 
than one acre of 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 at 40 CFR 122.26(b)(15)(i).

B. Significant Changes From the 1998 General Permit and the Subsequent 
2000 Modification

    1. The organization and numbering of the permit has been changed 
from the March 1998 (63 FR 15622) permit and the April 2000 (64 FR 
25122) permit modification to mirror the organization and numbering of 
the national permit issued by various other EPA regions in the July 
2003 Federal Register (68 FR 39087). This change also will support the 
use of the NOI form used to apply for coverage under the general 
permit. The NOI directs the applicant to certain sections of the 
permit. Therefore, it is imperative that the permit sections cited 
correspond to the topics referenced in the NOI.
    2. Coverage for discharges from small construction activities has 
been added to the eligibility provisions.
    3. The eligibility conditions were clarified regarding facilities 
discharging to water bodies with Total Maximum Daily Loads (TMDLs).
    4. Waivers have been added for qualifying discharges from small 
construction activities.
    5. The permit coverage area has been changed. Today's proposed 
reissuance no longer covers facilities on non-Indian lands in the State 
of Florida. It does continue to cover facilities on Indian Country 
lands within the States of Alabama, Florida, Mississippi and North 
Carolina.
    6. The NOI has been changed from the previous permit. See page 
78118 of the December 20, 2002, Federal Register (67 FR 78116) for a 
detailed discussion on the changes.

C. Summary of Terms and Conditions of the Proposed General Permit

1. Discharges Covered
    Operators of large, five acres and greater, and small, one acre to 
less than five acres, construction activities on Indian Country lands 
within the States of Alabama, Florida, Mississippi and North Carolina 
may be eligible to obtain coverage under this permit for allowable 
storm water and non-storm water discharges specifically listed in the 
permit.
2. Limitations on Coverage
    The proposed general permit retains the eligibility restrictions 
from the previous permit. The permit does not regulate post-
construction discharges, storm water discharges commingled with non-
storm water discharges, except as noted below, discharges previously 
covered by another NPDES, discharges which cause or contribute to a 
violation of a water quality standard, discharges which adversely 
affect threatened or endangered species or their critical habitat, or 
discharges which adversely affect a listed or proposed to be listed 
historic place or resource. In addition, the permit includes a new 
restriction on discharges of storm water to waters for which a TMDL has 
been developed. Discharges of storm water from large and small 
construction activities that do not meet the eligibility requirements 
of the proposed general permit would be required to submit an 
individual permit application.
3. Deadlines and Permit Application Process
    To obtain discharge authorization under the proposed general 
permit, dischargers must submit an NOI, which requires basic 
information about the facility owner/operator, location and 
discharge(s). NOI due dates, for construction activities on Indian 
lands in Alabama, Florida, Mississippi and North Carolina, are as 
follows:
    i. Ongoing construction activities previously covered by an NPDES 
permit, must submit an NOI within 60 days of the effective date of this 
permit.
    ii. New construction activities, after the effective date of this 
permit, must submit an NOI at least 48 hours prior to the commencement 
of any construction activity (e.g., the initial disturbance of soils 
associated with clearing, grading, excavation activities, or other 
construction activities).
4. Storm Water Pollution Prevention Plans
    The proposed general permit requires operators covered by the 
permit to develop and implement a SWPPP. All SWPPPs must be developed 
in accordance with sound engineering practices and developed specific 
to the site. The SWPPP must be prepared prior to submission of the NOI.

III. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735 (October 4, 1993)) the 
Agency must determine whether the regulatory action in ``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: (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

[[Page 53376]]

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 (APA) 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 rule making 
requirements, including the requirement for a general notice of 
proposed rule making, under APA section 533 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.'' APA section 551(4) defines rule as 
``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 or requirements of 
an agency . . . '' APA section 551(6) defines orders as ``a final 
disposition . . . of an agency in a matter other than rule making but 
including licensing.'' APA section 551(8) defines ``license'' to 
``include . . . an agency permit . . . '' 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. APA 
section 551(5) defines ``rule making'' as ``the agency process for 
formulating, amending, or repealing a rule.'' By its terms, section 553 
applies only to rules and not to orders, exempting by definition 
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'' to refer to regulations. (See, 
e.g., UMRA section 401, ``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).'') 
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 rule 
making 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'' by definition under the APA and thus not 
subject to the APA requirement to publish a notice of proposed rule 
making. 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. 
Therefore, NPDES general permits are not ``rules'' for RFA or UMRA 
purposes.

VI. Paperwork Reduction Act

    EPA HQ 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 CWA. 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.

Carol Kemker,
Acting Director, Water Management Division.
[FR Doc. 03-23062 Filed 9-9-03; 8:45 am]
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