[Federal Register Volume 73, Number 141 (Tuesday, July 22, 2008)]
[Notices]
[Pages 42571-42573]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-16740]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8695-8]


Notice of Availability of Draft NPDES General Permits MAG7000 and 
NHG7000 for Discharges From Dewatering Activities in the States of 
Massachusetts and New Hampshire: the Dewatering General Permit (DGP)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Availability of Draft NPDES General Permits MAG7000 
and NHG7000.

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SUMMARY: The Director of the Office of Ecosystem Protection, EPA-New 
England, is issuing a notice of availability of the draft National 
Pollutant Discharge Elimination System (NPDES) general permits for 
dewatering activity discharges to certain waters of the Commonwealth of 
Massachusetts and the State of New Hampshire. These General Permits 
replace the Construction Dewatering General Permits which expired on 
September 23, 2007.
    These draft General Permits establish Notice of Intent (NOI) 
requirements, effluent limitations, standards, prohibitions, and 
management practices for facilities with dewatering activity discharges 
from construction dewatering, flushing of potable water lines, pump 
testing of water wells, and dewatering of foundation sumps. Owners and/
or operators of facilities with dewatering discharges, including those 
currently authorized to discharge under the expired General Permits, 
will be required to submit an NOI to be covered by the General Permit 
to both EPA-New England and the appropriate

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state agency. After EPA and the State have reviewed the NOI, the 
facility will receive a written notification from EPA of permit 
coverage and authorization to discharge under the General Permit. The 
purpose of this document is to solicit public comments on the proposed 
General Permits.
    Public Comment Period: Interested persons may submit written 
comments on the draft General Permits to the EPA-Region I at the 
address listed below. Within the comment period, interested persons may 
also request, in writing, that EPA hold a public hearing pursuant to 40 
CFR section 124.12, concerning the draft General Permits. Such requests 
shall state the nature of the issues proposed to be raised at the 
hearing. A public hearing may be held at least thirty days after public 
notice whenever the Regional Administrator finds that response to this 
notice indicates significant public interest. In reaching a final 
decision on this draft permit, the Regional Administrator will respond 
to all significant comments and make responses available to the public 
at EPA's Boston office. In addition to comments on the draft General 
Permit, EPA is also requesting comments on the cost associated with a 
limit for total residual chlorine (TRC) for discharges containing 
potable water. All comments and requests for public hearings must be 
postmarked or delivered before midnight August 21, 2008, the close of 
the public comment period. All public comments or requests for a public 
hearing must be submitted to the address below.

ADDRESSES:  Written comments on the draft General Permit may be hand 
delivered or mailed to Ms. Sara Green, EPA-Region 1, Office of 
Ecosystem Protection, CIP, 1 Congress Street, Suite 1100, Boston, 
Massachusetts 02114-2023, or sent via e-mail to [email protected]. No 
facsimiles (faxes) will be accepted.

FOR FURTHER INFORMATION: For further information contact Ms. Green at 
617/918-1574, between the hours of 9 a.m. and 5 p.m., Monday through 
Friday, excluding holidays. The draft General Permits are based on an 
administrative record available for public review at EPA-Region 1, 
Office of Ecosystem Protection, 1 Congress Street, Suite 1100, Boston, 
Massachusetts 02114-2023, Monday-Friday from 9 a.m.-5 p.m. The draft 
General Permits and a Fact Sheet may also be viewed over the Internet 
via the EPA-Region 1 Web site. The Fact Sheet and General Permit for 
dischargers in Massachusetts are at http://www.epa.gov/ne/npdes/mass.html. The Fact Sheet and General Permit for dischargers in New 
Hampshire are at http://www.epa.gov/ne/npdes/newhampshire.html. To 
obtain a paper copy of the documents, please contact Ms. Green using 
the contact information provided above. A reasonable fee may be charged 
for copying requests.

SUPPLEMENTARY INFORMATION:

Regulatory Flexibility Analysis

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure 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.
    The legal question of whether a general permit (as opposed to an 
individual permit) qualifies as a ``rule'' or as an ``adjudication'' 
under the Administrative Procedure Act (APA) has been the subject of 
periodic litigation. In a recent case, the court held that the Clean 
Water Act (CWA) Section 404 Nationwide general permit before the court 
did qualify as a ``rule'' and therefore that the issuance of the 
general permit needed to comply with the applicable legal requirements 
for the issuance of a ``rule.'' National Ass'n of Home Builders v. U.S. 
Army Corps of Engineers, 417 F.3d 1272, 1284-85 (DC Cir. 2005) (Army 
Corps general permits under Section 404 of the Clean Water Act are 
rules under the APA and the Regulatory Flexibility Act; ``Each NWP 
[nationwide permit] easily fits within the APA's definition of a 
`rule.'* * * As such, each NWP constitutes a rule * * *''.)
    As EPA stated in 1998, ``the Agency recognizes that the question of 
the applicability of the APA, and thus the RFA, to the issuance of a 
general permit is a difficult one, given the fact that a large number 
of dischargers may choose to use the general permit.'' 63 FR 36489, 
36497 (July 6, 1998). At that time, EPA ``reviewed its previous NPDES 
general permitting actions and related statements in the Federal 
Register or elsewhere,'' and stated that ``[t]his review suggests that 
the Agency has generally treated NPDES general permits effectively as 
rules, though at times it has given contrary indications as to whether 
these actions are rules or permits.'' Id. at 36496. Based on EPA's 
further legal analysis of the issue, the Agency ``concluded, as set 
forth in the proposal, that NPDES general permits are permits [i.e., 
adjudications] under the APA and thus not subject to APA rulemaking 
requirements or the RFA.'' Id. Accordingly, the Agency stated that 
``the APA's rulemaking requirements are inapplicable to issuance of 
such permits,'' and thus ``NPDES permitting is not subject to the 
requirement to publish a general notice of proposed rulemaking under 
the APA or any other law * * * [and] it is not subject to the RFA.'' 
Id. at 36497.
    However, the Agency went on to explain that, even though EPA had 
concluded that it was not legally required to do so, the Agency would 
voluntarily perform the RFA's small-entity impact analysis. Id. EPA 
explained the strong public interest in the Agency following the RFA's 
requirements on a voluntary basis: ``[The notice and comment] process 
also provides an opportunity for EPA to consider the potential impact 
of general permit terms on small entities and how to craft the permit 
to avoid any undue burden on small entities.'' Id. Accordingly, with 
respect to the NPDES permit that EPA was addressing in that Federal 
Register notice, EPA stated that ``the Agency has considered and 
addressed the potential impact of the general permit on small entities 
in a manner that would meet the requirements of the RFA if it 
applied.'' Id.
    Subsequent to EPA's conclusion in 1998 that general permits are 
adjudications, rather than rules, as noted above, the DC Circuit 
recently held that nationwide general permits under section 404 are 
``rules'' rather than ``adjudications.'' Thus, this legal question 
remains ``a difficult one'' (supra). However, EPA continues to believe 
that there is a strong public policy interest in EPA applying the RFA's 
framework and requirements to the Agency's evaluation and consideration 
of the nature and extent of any economic impacts that a CWA general 
permit could have on small entities (e.g., small businesses). In this 
regard, EPA believes that the Agency's evaluation of the potential 
economic impact that a general permit would have on small entities, 
consistent with the RFA framework discussed below, is relevant to, and 
an essential component of, the Agency's assessment of whether a CWA 
general permit would place requirements on dischargers that are 
appropriate and reasonable. Furthermore, EPA believes that the RFA's 
framework and requirements provide the Agency with the best approach 
for the Agency's evaluation of the economic impact of general permits 
on small entities. While using the RFA

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framework to inform its assessment of whether permit requirements are 
appropriate and reasonable, EPA will also continue to ensure that all 
permits satisfy the requirements of the Clean Water Act. Accordingly, 
EPA has committed to operating in accordance with the RFA's framework 
and requirements during the Agency's issuance of CWA general permits 
(in other words, the Agency has committed that it will apply the RFA in 
its issuance of general permits as if those permits do qualify as 
``rules'' that are subject to the RFA).
    EPA anticipates that for most general permits the Agency will be 
able to conclude that there is not a significant economic impact on a 
substantial number of small entities. In such cases, the requirements 
of the RFA framework are fulfilled by including a statement to this 
effect in the permit fact sheet, along with a statement providing the 
factual basis for the conclusion. A quantitative analysis of impacts 
would only be required for permits that may affect a substantial number 
of small entities, consistent with EPA guidance regarding RFA 
certification.\1\
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    \1\ EPA's current guidance, entitled Final Guidance for EPA 
Rulewriters: Regulatory Flexibility Act as Amended by the Small 
Business Regulatory Enforcement and Fairness Act, was issued in 
November 2006 and is available on EPA's Web site: http://www.epa.gov/sbrefa/documents/rfafinalguidance06.pdf. After 
considering the Guidance and the purpose of CWA general permits, EPA 
concludes that general permits affecting fewer than 100 small 
entities do not have a significant economic impact on a substantial 
number of small entities.
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    Consistent with the above discussion, EPA has concluded that the 
proposed issuance of the 2008 DGP would not affect a substantial number 
of small entities. An estimated 36 construction projects per year were 
authorized under the 2002 General Permits, a substantial number of 
which were not operated by small entities. The 2008 DGP includes 
expanded coverage for additional types of discharges; however, these 
discharges are temporary in nature. At any one time, fewer than 100 
small entities are expected to be discharging and incurring costs. In 
addition, requirements in the draft 2008 DGP remain substantially 
similar to those in the 2002 General Permit, except for the addition of 
total residual chlorine (TRC) limits for discharges from municipal 
sources. Therefore, EPA has concluded that the proposed issuance of the 
2008 DGP is unlikely to have an adverse economic impact on small 
entities.

    Dated: July 14, 2008.
Robert W. Varney,
Regional Administrator, Region 1.
 [FR Doc. E8-16740 Filed 7-21-08; 8:45 am]
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