[Federal Register Volume 73, Number 247 (Tuesday, December 23, 2008)]
[Notices]
[Pages 78786-78788]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30549]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8756-6]


Notice of Availability of Draft National Pollutant Discharge 
Elimination System (NPDES) General Permit for Small Municipal Separate 
Storm Sewer Systems (MS4)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Availability of Draft NPDES General Permits.

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SUMMARY: The Director of the Office of Ecosystem Protection, 
Environmental Protection Agency--Region 1 (EPA), is issuing this Notice 
of Availability of Draft NPDES general permits for discharges from 
small MS4s to certain waters of the states of New Hampshire and 
Vermont, and to certain waters on Indian Country lands in the states of 
Connecticut and Rhode Island. These draft NPDES general permits 
establish Notice of Intent (NOI) requirements, prohibitions, and 
management practices for stormwater discharges from small MS4s. EPA is 
proposing to issue six general permits. Throughout this document the 
terms ``this permit'' or ``the permit'' will refer to all six general 
permits.
    Owners and/or operators of small MS4s that discharge stormwater 
will be required to submit a NOI to EPA--Region 1 to be covered by the 
general permit and will receive a written notification from EPA of 
permit coverage and authorization to discharge under the general 
permit. The eligibility requirements are discussed in the draft permit. 
The small MS4 must meet the eligibility requirements of the permit 
prior to submission of the NOI.
    The draft general permits, appendices, and fact sheet are available 
at http://www.epa.gov/region1/npdes/stormwater/MS4_2008_NH.html.

DATES: The public comment period is from the December 23, 2008 to 
January 30, 2009. Interested persons may submit comments on the draft 
general permit as part of the administrative record to the EPA--Region 
1, at the address given below, no later than midnight January 30, 2009. 
The general permit shall be effective on the date specified in the 
Federal Register publication of the Notice of Availability of the final 
general permit. The final general permit will expire five years from 
the effective date.

ADDRESS: Submit comments by one of the following methods:
     E-mail: Murphy.thelma @epa.gov.
     Mail: Thelma Murphy, USEPA--Office of Ecosystem 
Protection, One Congress Street--Suite 1100 (CIP), Boston, MA 02114.

No facsimiles (faxes) will be accepted.
    The draft permit is based on an administrative record available for 
public review at EPA--Region 1, Office of Ecosystem Protection (CIP), 
One Congress Street, Suite 1100, Boston, Massachusetts 02114-2023. The 
following SUPPLEMENTARY INFORMATION section sets forth principal facts 
and the significant factual, legal and policy questions considered in 
the development of the draft permit. A reasonable fee may be charged 
for copying requests.
    Public Meeting Information: EPA--Region 1 will hold a public 
meeting to provide information about the draft general permit and its 
requirements. The public meeting will include a brief presentation on 
the draft general permit and a brief question and answer session. 
Written, but not oral, comments for the official draft permit record 
will be accepted at the public meeting. The public meeting will be at 
the following location: Wednesday--January 28, 2009, Portsmouth City 
Council Chambers, Portsmouth City Hall, One Junkins Avenue, Portsmouth, 
NH 03801, 9 a.m.-10 a.m.
    Public Hearing Information: Following the public meeting, a public 
hearing will be conducted in accordance with 40 CFR 124.12 and will 
provide interested parties with the opportunity to provide written and/
or oral comments for the official draft permit record. The public 
hearing will be at the following location: Wednesday--January 28, 2009, 
Portsmouth City Council Chambers, Portsmouth City Hall, One Junkins 
Avenue, Portsmouth, NH 03801, 10:10 a.m.

FOR FURTHER INFORMATION CONTACT: Additional information concerning the 
draft permit may be obtained between the hours of 9 a.m. and 5 p.m. 
Monday through Friday excluding holidays from: Thelma Murphy, Office of 
Ecosystem Protection, Environmental Protection Agency, 1 Congress 
Street, Suite 1100 (CIP), Boston, MA 02114-2023; telephone: 617-918-
1615; e-mail: [email protected]

SUPPLEMENTARY INFORMATION: 

I. Background of Proposed Permit

    As stated previously, the Director of the Office of Ecosystem 
Protection, EPA--Region 1, is proposing to reissue six NPDES general 
permits for the discharge of stormwater from small MS4s to waters 
within the states of New Hampshire and Vermont (federal facilities 
only) and Indian lands within the states of Connecticut and Rhode 
Island. The six permits are:
    NHR041000--State of New Hampshire--Traditional.
    NHR042000--State of New Hampshire--Non-Traditional.
    NHR043000--State of New Hampshire--Transportation.
    CTR04000I--State of Connecticut--Indian Lands.
    RIR04000I--State of Rhode Island--Indian Lands.
    VTR04000F--State of Vermont--Federal Facilities.
    The conditions in the draft permit are established pursuant to 
Clean Water Act (CWA) Section 402(p)(3)(iii) to ensure that pollutant 
discharges from small MS4s are reduced to the maximum extent 
practicable (MEP), protect water quality, and satisfy the appropriate

[[Page 78787]]

water quality requirements of the CWA. The regulations at 40 CFR 
122.26(b)(16) define a small municipal separate storm sewer system as 
``* * * all separate storm sewers that are:

    (1) Owned or operated by the United States, a State, city, town, 
borough, county, parish, district, association, or other public body 
(created by or pursuant to State law) having jurisdiction over 
disposal of sewage, industrial wastes, stormwater, or other wastes, 
including special districts under State law such as a sewer 
district, flood control district or drainage district, or similar 
entity, or an Indian tribe or an authorized Indian tribal 
organization, or a designated and approved management agency under 
section 208 of the CWA that discharges to waters of United States.
    (2) Not defined as `large' or `medium' municipal separate storm 
sewer systems pursuant to paragraphs (b)(4) or (b)(7) or designated 
under paragraph (a)(1)(v) of this section [40 CFR 122.26].
    (3) This term includes systems similar to separate storm sewer 
systems in municipalities such as systems at military bases, large 
hospital or prison complexes, and highways and other thoroughfares. 
The term does not include separate storm sewers in very discrete 
areas, such as individual buildings.''

    For example, an armory located in an urbanized area would not be 
considered a regulated small MS4.
    The draft general permit sets forth the requirements for the small 
MS4 to ``reduce the discharge of pollutants to the maximum extent 
practicable, including management practices, control techniques, and 
system, design and engineering methods * * *'' (See section 
402(p)(3)(B)(iii) of the CWA). MEP is the statutory standard that 
establishes the level of pollutant reductions that MS4 operators must 
achieve. EPA believes implementation of best management practices 
(BMPs) designed to control storm water runoff from the MS4 is generally 
the most appropriate approach for reducing pollutants to satisfy the 
technology standard of MEP. Pursuant to 40 CFR 122.44(k), the draft 
permit contains BMPs, including development and implementation of a 
comprehensive stormwater management program (SWMP) as the mechanism to 
achieve the required pollutant reductions.
    Section 402(p)(3)(B)(iii) of CWA also authorizes EPA to include in 
an MS4 permit ``such other provisions as [EPA] determines appropriate 
for control of * * * pollutants.'' EPA believes that this provision 
forms a basis for imposing water quality-based effluent limitations 
(WQBELs), consistent with the authority in Section 301(b)(1)(C) of the 
CWA. See Defenders of Wildlife v. Browner. 191 F.3d 1159 (9th Cir. 
1999): see also EPA's preamble to the Phase II regulations, 64 FR 
68722, 68753, 68788 (Dec 8, 1999). Accordingly, the draft general 
permits contains the water quality-based effluent limitations, 
expressed in terms of BMPs, which EPA has determined are necessary and 
appropriate under the CWA.
    EPA--Region 1 issued a final general permit to address stormwater 
discharges from small MS4s on May 1, 2003. The 2003 general permit 
required small MS4s to develop and implement a SWMP designed to control 
pollutants to the maximum extent practicable and protect water quality. 
This draft general permit builds on the requirements of the previous 
general permit.
    EPA views the MEP standard in the CWA as an iterative process. MEP 
should continually adapt to current conditions and BMP effectiveness. 
EPA believes that compliance with the requirements of this general 
permit will meet the MEP standard. The iterative process of MEP 
consists of a municipality developing a program consistent with 
specific permit requirements, implementing the program, evaluating the 
effectiveness of BMPs included as part of the program, then revising 
those parts of the program that are not effective at controlling 
pollutants, then implementing the revisions, and evaluating again. The 
changes contained in the draft general permits reflect the iterative 
process of MEP. Accordingly, the draft general permit contains more 
specific tasks and details than the 2003 general permit.

II. Summary of Permit Conditions

Obtaining Authorization

    In order for a small MS4 to obtain authorization to discharge, it 
must submit a complete and accurate NOI containing the information in 
Appendix E of the draft general permit. The NOI must be submitted 
within 90 days of the effective date of the final permit. The effective 
date of the final permit will be specified in the Federal Register 
publication of the Notice of Availability of the final permit. A small 
MS4 must meet the eligibility requirements of the general permit found 
in Part 1.2 and Part 1.9 prior to submission of its NOI. A small MS4 
will be authorized to discharge under the permit upon the effective 
date of coverage. The effective date of coverage is upon receipt of 
written notice by EPA following a public notice of the NOI.
    The draft general permit provides interim coverage for permittees 
covered by the previous permit and whose coverage was effective upon 
the expiration of that permit (May 1, 2008). For those discharges 
covered by the pervious permit, authorization under the previous permit 
is continued automatically on an interim basis for up to 180 days from 
the effective date of the final permit. Interim coverage will terminate 
earlier than the 180 days when a complete and accurate NOI has been 
submitted by the small MS4 and coverage is either granted or denied. If 
a permittee was covered under the previous permit and submitted a 
complete and accurate NOI in a timely manner, and notification of 
authorization under the final permit has not occurred within 180 days 
of the effective date of the final permit, the permittee's 
authorization under the previous permit can be continued beyond 180 
days on an interim basis. Interim coverage will terminate after 
authorization under this general permit, an alternative permit, or 
denial of permit coverage.
    EPA--Region 1 will provide an opportunity for the public to comment 
on each NOI that is submitted. Following the public notice, EPA--Region 
1 will authorize the discharge, request additional information, or 
require the small MS4 to apply for an alternative permit or individual 
permit.

Water Quality Based Effluent Limitations

    The draft general permit includes provisions to ensure that 
discharges do not cause or contribute to exceedances of water quality 
standards. The provisions in Part 2.1 of the general permit constitute 
the water quality based effluent limitations of the permit. The purpose 
of this part of the permit is to establish the broad inclusion of 
water-quality based effluent limitations for those discharges requiring 
additional controls in order to achieve water quality standards and 
other water quality-related objectives, consistent with 40 CFR 
122.44(d). The water quality-based effluent limitations supplement the 
permit's non-numeric effluent limitations. The non-numeric effluent 
limitation requirements of this permit are expressed in the form of 
control measures and BMPs (see Part 2.3 of the general permit).

Non-Numeric Effluent Limitations

    If EPA has not promulgated effluent limitations for a category of 
discharges, or if an operator is discharging a pollutant not covered by 
an effluent guideline, permit limitations may be based on the best 
professional judgment (BPJ) of the agency or permit writer. The BPJ 
limits in this permit are in the form of non-numeric control measures, 
commonly referred to as best management practices (BMPs). Non-

[[Page 78788]]

numeric limits are employed under limited circumstances, as described 
in 40 CFR 122.44(k). EPA has interpreted the CWA to allow BMPs to take 
the place of numeric effluent limitations under certain circumstances. 
40 CFR 122.44(k) provides that permits may include BMPs to control or 
abate the discharge of pollutants when: ``(1) [a]uthorized under 
section 304(e) of the CWA for the control of toxic pollutants and 
hazardous substances from ancillary industrial activities; (2) 
[a]uthorized under section 402(p) of the CWA for the control of 
stormwater discharges; (3) [n]umeric effluent limitations are 
infeasible; or (4) [t]he practices are reasonable to achieve effluent 
limitations and standards or to carry out the purposes and intent of 
the CWA.'' The permit regulates stormwater discharges using BMPs. Due 
to the variability associated with stormwater, EPA believes the use of 
BMPs is the most appropriate method to regulate discharges of 
stormwater from municipal systems in accordance with the above 
referenced regulation.
    The draft permit requires small MS4s to continue to control 
stormwater discharges for the municipal system in a manner designed to 
reduce the discharge of pollutants to the maximum extent practicable 
and to protect water quality. The small MS4s are required to implement 
a SWMP consisting of control measures. These control measures include 
the following: Public Education and Outreach, Public Participation, 
Illicit Discharge Detection and Elimination, Construction Stormwater 
Management, Stormwater Management in New Development and Redevelopment, 
and Good Housekeeping in Municipal Operations. Implementation of the 
SWMP involves the identification of BMPs and measurable goals for the 
BMPs. The draft permit identifies the objective of each control 
measure. The small MS4 must implement the control measures required by 
the general permit and document actions in the SWMP demonstrating 
progress towards achievement of the objective of the control measure. 
The permit also contains requirements for outfall monitoring associated 
with illicit detection and elimination, recordkeeping and reporting.

III. Other Legal Requirements

A. Environmental Impact Statement Requirements

    The draft general permit does not authorize discharges from any new 
sources as defined under 40 CFR 122.2. Therefore, the National 
Environmental Policy Act, 33 U.S.C. sections 4321 et seq., does not 
apply to the issuance of this general NPDES permit.

B. Section 404 Dredge and Fill Operations

    This draft permit does not constitute authorization under 33 U.S.C. 
Section 1344 (Section 404 of the Clean Water Act) of any stream 
dredging or filling operations.

C. CWA 401 Water Quality Certification

    Section 401(a)(1) of the CWA states that EPA may not issue a permit 
until a certification is granted or waived in accordance with that 
section of the CWA by the state in which the discharge originates or 
will originate. The 401 certification affirms that the conditions of 
the general permit will be protective of the water quality standards 
and satisfy other appropriate requirements of state law. The 401 
certification may also include additional conditions that are more 
stringent than those in the draft permit that the state finds necessary 
to meet the requirements of appropriate laws. Regulations governing 
state certification are set forth in 40 CFR 124.53 and 124.55. 
Concurrent with the public notice of this general permit, EPA--Region 1 
will request 401 water quality certifications.
    Section 401(a) of the CWA states in part that in any case where a 
state, interstate agency or tribe has no authority to issue a water 
quality certification, EPA shall issue such certification. At this 
time, none of the tribes in Connecticut or Rhode Island have approved 
water quality standards or Section 401 authority for the purpose of 
regulating water resources within the border of Indian lands pursuant 
to Section 518(e) of the CWA. As provided for under Section 401(a)(1) 
of the CWA, EPA--Region 1 will provide certification of this permit for 
tribal lands.

D. Executive Order 12866

    EPA has determined that this draft general permit is not a 
``significant regulatory action'' under the terms of Executive Order 
(EO) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject 
to review under the EO.

E. Paperwork Reduction Act

    The information collection requirements of this draft permit were 
previously approved by the Office of Management and Budget (OMB) under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
and assigned OMB control number 2040-0086 (NPDES permit application) 
and 2040-0004 (Monitoring Reports).

F. Regulatory Flexibility Act

    EPA's current guidance, entitled ``Federal Guidance for EPA Rule 
Writers: Regulatory Flexibility Act [RFA] 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, EPA concludes that since this general permit affects less 
than 100 small entities, it does not have a significant economic impact 
on a substantial number of small entities. The RFA defines a ``small 
governmental jurisdiction'' as the government of a city, county, town, 
township, village, school district, or special district with a 
population of less than 50,000.

G. 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 tribal, state, and local governments 
and the private sector. The UMRA defines ``regulatory actions'' to 
include proposed or final rules with Federal mandates. The draft permit 
proposed today, however, is not a ``rule'' and is therefore not subject 
to the requirements of UMRA.

    Dated: December 16, 2008.
Robert W. Varney,
Regional Administrator, EPA New England.
 [FR Doc. E8-30549 Filed 12-22-08; 8:45 am]
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