[Federal Register Volume 75, Number 23 (Thursday, February 4, 2010)]
[Notices]
[Pages 5788-5790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2399]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9109-2]


Notice of Availability of Draft National Pollutant Discharge 
Elimination System (NPDES) General Permits 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 Commonwealth of Massachusetts. 
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 three general 
permits. Throughout this document the terms ``this permit'' and ``the 
permit'' will refer to all three general permits.
    Owner 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. Following a review and public notice of the NOI, MS4s 
will receive a written notification from EPA regarding 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 the 
submission of the NOI.
    The draft general permit, appendices, and fact sheet are available 
at: http://www.epa.gov/region1/npdes/stormwater

DATES: The public comment period is from the February 4, 2010 to March 
31, 2010. 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 March 31, 2010. 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.

ADDRESSES: Submit comments by one of the following methods:
     E-mail: [email protected].
     Mail: Thelma Murphy, U.S. EPA--Region 1, 5 Post Office 
Square--Suite 100, Mail Code--OEP06-4, Boston, MA 02109-3912.
    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, 5 Post 
Office Square--Suite 100, Boston, Massachusetts 02109-3912. 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 permits 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 held 
at the following time and location: Thursday--March 18, 2010, Thomas P. 
O'Neil, Jr. Federal Building, 10 Causeway Street--Auditorium First 
Floor, Boston, MA 02222, 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

[[Page 5789]]

comments for the official draft permit record. The public hearing will 
be held at the following time and location: Thursday--March 18, 2010, 
Thomas P. O'Neil, Jr. Federal Building, 10 Causeway Street--Auditorium 
First Floor, Boston, MA 02222, 10:15 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, 5 Post Office 
Square--Suite 100, Boston, MA 02109-3912; telephone: 617-918-1615; 
email: [email protected].

SUPPLEMENTARY INFORMATION:

Background of Proposed Permit

    As stated previously, the Director of the Office of Ecosystem 
Protection, EPA--Region 1, is proposing to reissue three NPDES general 
permits for the discharge of stormwater from small MS4s to certain 
waters within the Commonwealth of Massachusetts. The three permits are:
    MAR041A00--Traditional cities and towns.
    MAR042A00--Non-traditional state/federal owned systems.
    MAR043A00--Non-traditional transportation systems.
    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 
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 the 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 or 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 
MEP standard. 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] determine 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 permits 
contain 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 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 the 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 permits 
contain more specific tasks and details than the 2003 general permit.

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 F 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 from 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 date of that permit (May 1, 2008). For those discharges 
covered by the previous 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

[[Page 5790]]

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 either authorize the discharge, request additional information, 
or require the small MS4 to apply for an alternative permit or an 
individual permit.

Water Quality-Based Effluent Limitations

    The draft permit includes provisions to ensure that discharges do 
not cause or contribute to exceedances of water quality standards. The 
provisions in Parts 2.1, 2.2, and 2.3 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 board 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 non-numeric effluent limitation requirements of this 
permit are expressed in the form of control measures and BMPs (see Part 
2.4 of the general permit).

Non-Numeric Effluent Limitations

    When EPA has not promulgated effluent limitations for a category of 
discharges, or if an operator is discharging a pollutant not covered by 
an effluent limitation guideline, effluent limitations may be based on 
the best professional judgment (BPJ) of the agency or permit writer. 
The BPJ limits in the general permit are in the form of non-numeric 
control measures, commonly referred to as best management practices 
(BMPs). Non-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 form 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 from the municipal system in a manner designed to 
reduce the discharge of pollutant 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 BMPs. 
The draft permit identifies an objective for each control measure. The 
small MS4 must implement the control measures required by the general 
permit and document actions in the SWMP that demonstrate progress 
toward achievement of the objective of the control measure. The permit 
also contains outfall monitoring requirements that are associated with 
implementation of the illicit discharge detection and elimination 
program, recordkeeping and reporting.

    Dated: January 25, 2010.
H. Curtis Spalding,
Regional Administrator, Region 1.
[FR Doc. 2010-2399 Filed 2-3-10; 8:45 am]
BILLING CODE 6560-50-P