[Federal Register Volume 75, Number 75 (Tuesday, April 20, 2010)]
[Notices]
[Pages 20592-20594]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-9133]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9139-4]


Notice of Availability of Draft National Pollutant Discharge 
Elimination System (NPDES) General Permit for Residually Designated 
Discharges in Milford, Bellingham and Franklin, MA; and Notice of 
Availability of Proposed Amendments to the Preliminary Residual 
Designation Issued by EPA on November 12, 2008

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Availability of draft NPDES general permit.

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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 a draft NPDES general permit for storm water 
discharges in the Charles River watershed within Milford, Bellingham, 
and Franklin, Massachusetts, from sites that are proposed for final 
designation for NPDES permitting pursuant to EPA's residual designation 
authority, so called, provided by Section 402(p)(2)(E) and (6) of the 
Clean Water Act (CWA) as implemented through regulatory provisions at 
40 CFR 122.26(a)(9)(i)(C) and (D).
    Those sections provide that in states where there is no approved 
state program, the EPA Regional Administrator may designate a storm 
water discharge as requiring an NPDES permit where he determines that: 
``* * * (C) storm water controls are needed for the discharge based on 
wasteload allocations that are part of total maximum daily loads that 
address the pollutants of concern, or (D) the discharge, or category of 
discharges within a geographic area, contributes to a violation of a 
water quality standard or is a significant contributor of pollutants to 
waters of the United States.'' The storm water discharges subject to 
the draft permit are proposed for final designation for NPDES 
permitting because their control is necessary based on wasteload 
allocations in the Lower Charles River Phosphorus TMDL (``the TMDL'') 
and because they are contributing to water quality standards 
violations.
    On November 12, 2008, the Regional Administrator for EPA Region 1 
made a preliminary determination that designated discharges, as defined 
in that preliminary designation determination and as described below, 
warranted NPDES permit coverage. That determination is documented in 
the EPA Region 1 Record of Decision (ROD) dated November 12, 2008, that 
can be found on EPA Region 1's Web site at: http://www.epa.gov/region1/npdes/stormwater.
    At the time of the preliminary determination, EPA invited comment 
on its decision until the close of the comment period on the permit 
discussed in this notice.
    EPA is today proposing amendments, discussed below, to that 
Preliminary Residual Designation. EPA is also publishing a draft 
general permit that will cover those designated discharges. This draft 
NPDES general permit establishes Notice of Intent (NOI) requirements, 
prohibitions, and storm water management practices for storm water 
discharges from designated discharge sites. 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 April 20, 2010 to June 30, 
2010. Interested persons may submit comments on the draft general 
permit to EPA-Region 1, at the address given below, no later than 
midnight June 30, 2010. Those comments will be placed in the 
administrative record for the designation and permit. 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 its effective 
date.

ADDRESSES: Submit comments identified by Docket ID No. EPA-R01-OW-2010-
0292 by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Mail: Mark Voorhees, US EPA--Region 1, 5 Post Office 
Square--Suite 100, Mail Code--OEP 06-4, 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 on the draft general permit and its 
requirements. The public

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meeting will include a brief presentation on the draft general permit 
and a brief question and answer session. Written, but not oral, 
comments will be accepted at the public meeting and will be placed into 
the administrative record. The public meeting will be held at the 
following time and location:
Tuesday, June 22, 2010
Tri-County Regional Vocational School Auditorium, 147 Pond Street, 
Franklin, MA 02038.
Time: 6 p.m.-7 p.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 held at the following time and location:
Tuesday, June 22, 2010
Tri-County Regional Vocational School Auditorium, 147 Pond Street, 
Franklin, MA 02038.
Time: 7:30 p.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: Mark Voorhees, Office of 
Ecosystem Protection, Environmental Protection Agency, 5 Post Office 
Square--Suite 100, Boston, MA 02109-3912; telephone: 617-918-1537; e-
mail: [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 issue a National Pollutant 
Discharge Elimination System (``NPDES'') general permit for residually 
designated discharges in the upper portions of the Charles River 
watershed. The permit is:
    MARRD0000--General Permit for Designated Discharges in the Charles 
River Watershed within the Municipalities of Milford, Bellingham, and 
Franklin, Massachusetts.
    For purposes of the fact sheet and draft permit, a designated 
discharge is defined as follows:
    A Designated Discharge is two or more acres of impervious surfaces 
located: (1) In the Charles River watershed; (2) in part or in whole in 
the municipalities of Milford, Bellingham, or Franklin, Massachusetts; 
and (3) on a single lot or two or more contiguous lots aggregated as 
follows: when measuring the impervious surfaces to determine if they 
meet the two acre threshold, the following impervious surfaces shall 
not be included:
    Any impervious surfaces associated solely with any of the following 
land uses:
    a. Sporting and recreational camps;
    b. Recreational vehicle parks and campsites;
    c. Manufactured housing communities;
    d. Detached single-family homes located on individual lots; and
    e. Stand-alone multi-family houses with four or fewer units; and
    f. Any property owned by a local, state or federal government unit 
where the property discharges wholly into an MS4 system operated by 
that local, state or federal government unit that has a valid NPDES 
permit.
    For the purpose of defining ``designated discharge,'' a stand-alone 
multi-family house with four or fewer units does not include any multi-
family house that is part of a condominium, cooperative, apartment 
complex, townhouse, or other residential or mixed-use development with 
more than four dwelling units, or any multi-family houses that share 
private access roads, driveways or parking areas with contiguous lots 
containing additional dwelling units where the total number of units 
served by the shared access road, driveway or parking area is more than 
four.
    When measuring impervious surfaces to determine if they meet the 
two acre threshold for a designated discharge, the impervious surfaces 
on contiguous lots shall be included provided that:
    (1) The contiguous lots are owned by the same person; or
    (2) The footprint of the same building, structure, low impact 
development techniques or structural storm water best management 
practice spans the contiguous lots owned by different persons.
    EPA may require that impervious surfaces on contiguous lots that do 
not meet the requirements above be included for purposes of determining 
whether they meet the two acre threshold for a designated discharge if 
it finds that ownership of the contiguous lots asserted to be in 
separate ownership was arranged to circumvent the requirements of the 
permit, including evidence that on or after the publication date of 
this notice, two or more owners of contiguous lots have acted in 
concert to acquire or dispose of contiguous lots to avoid the 
requirements of the permit.
    For purposes of the draft permit, the Charles River watershed 
includes all areas that discharge directly to the Charles River or its 
tributaries or indirectly to the Charles River or its tributaries 
through a municipal separate storm sewer system (MS4) or other private 
or public conveyance systems, including structural storm water best 
management practices.
    On November 12, 2008, EPA issued for public comment a document 
entitled ``Preliminary Residual Designation.'' The definition of 
``designated discharge'' in the preliminary residual designation is 
being amended in the proposed final residual designation of today in 
three ways:
    1. The preliminary residual designation stated that a designated 
discharge is a storm water discharge from two or more acres of 
impervious surfaces that are located on a single lot or two or more 
contiguous lots aggregated in accordance with 314 CMR 21.05. This 
element of the definition was based on draft Massachusetts regulations 
that were under development at the time the preliminary residual 
designation was made.
    The proposed final designation issued today changes the aggregation 
rules to combine impervious surfaces where they are on contiguous lots 
owned by the same person; or where the footprint of the same building, 
structure, low impact development techniques or structural storm water 
best management practice spans the contiguous lots owned by different 
persons.
    2. The preliminary residual designation stated that in aggregating 
impervious surfaces to determine if they constitute a designated 
discharge, impervious surfaces owned or operated by a local government 
unit, the Commonwealth of Massachusetts or the federal government 
should not be included. The definition of designated discharge in 
today's proposed final designation does not contain that exclusion. The 
proposed final designation does, however, exclude any property owned by 
a local, state or federal government unit where the property discharges 
wholly into an MS4 system operated by that local, state or federal 
government unit and that unit holds a valid NPDES permit.
    3. The original designation stated that where a property containing 
a designated discharge is owned by one person but is operated by 
another person, the operator of the property is required to obtain the 
NPDES permit. The proposed final designation requires any owner of part 
or all of a designated discharge to file an NOI within 180 days of the 
effective date of the permit and to obtain authorization to discharge 
under the permit. (A different filing schedule applies to designated 
discharges that come into existence after

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the effective date of the permit.) EPA expects that in some instances, 
the owner of a designated discharge may not control or have the right 
to control all of the activities whose control are necessary to assure 
compliance with the permit. In such an instance, the owner must 
identify in its NOI what activities it does not control or have the 
right to control, the specific provisions of the permit that require 
their control and the identity of each person who has the control or 
the right to control such activity. EPA may request that such a person 
submit an NOI or an application for an individual permit. EPA may 
subsequently authorize that person to discharge subject to its 
compliance with the applicable provisions of the relevant permit. Once 
authorized under this permit, that person would be a co-permittee.
    The preliminary residual designation stated that the comment period 
on it would remain open until the close of the comment period on this 
draft permit. EPA is inviting additional comment on the proposed final 
designation it is issuing today. The agency will respond to all 
significant comments on the designation and the draft permit at the 
close of the comment period on this permit.

EPA's NPDES Permitting Authority

    Section 301(a) of the CWA prohibits the discharge of pollutants 
into waters of the United States except in compliance with certain 
sections of the Act, including Section 402 of the Act. Section 402 of 
the Act provides that the Administrator of EPA may issue National 
Pollutant Discharge Elimination (NPDES) permits for discharges of any 
pollutant into waters of the United States according to such specific 
terms and conditions as the Administrator may require. EPA's 
regulations provide for the issuance of general permits to authorize 
one or more categories or subcategories of discharges, including storm 
water point source discharges within a geographic area, pursuant to 40 
CFR 122.28(a)(1) and (2)(i). Section 402 of the CWA also authorizes EPA 
to issue NPDES permits allowing discharges that will meet certain 
specified requirements. The conditions in the draft permit are 
established pursuant to the CWA and 40 CFR Parts 122 and 124.
    The draft permit establishes a series of storm water control 
requirements, mostly in the form of Best Management Practices (BMPs), 
to assure that storm water from a permittee's designated discharge do 
not cause or contribute to violations of Massachusetts water quality 
standards. Due to the variability of pollutant loads from different 
sources associated with storm water, EPA believes the use of BMPs is 
the most appropriate method to regulate discharges of storm water 
authorized by this permit. Pursuant to 40 CFR 122.44(k), the permit 
requires the use of BMPs, including the development and implementation 
of a comprehensive storm water management plan and a phosphorus 
reduction plan, as the mechanisms to achieve the required pollutant 
reductions.

Summary of Permit Conditions

Obtaining Authorization

    In order to obtain authorization to discharge, owners of property 
on which designated discharges are located are required to submit a 
complete and accurate NOI to EPA--Region 1. The contents of the NOI and 
the specific provisions governing by when and by whom an NOI must be 
filed, including in circumstances where a designated discharge has more 
than one owner, are provided in Appendix A to the draft permit and 
should be consulted by any person having an ownership interest in a 
designated discharge.
    The NOI must be submitted within 180 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. An owner of a designated discharge 
must meet the eligibility requirements of the draft permit prior to 
submission of its NOI. The owner of a designated discharge will be 
authorized to discharge under the permit upon written notice from EPA.
    EPA--Region 1 will provide an opportunity for the public to comment 
on each NOI that is submitted. Following public comment, EPA--Region 1 
will authorize the discharge, request additional information, or 
require the discharge owner to apply for an alternative permit or an 
individual permit.

Technology Based Effluent Limitations

    All NPDES permits are required to contain technology-based 
limitations. When EPA has not promulgated effluent limitation 
guidelines for an industry, 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 permit 
writer, pursuant to CWA Section 402 (a)(1) and 40 CFR 125.3(c). For 
this permit, the technology-based limits are based on BPJ because no 
effluent limitation guideline applies.
    The BPJ limits in this permit are in the form of non-numeric 
control measures, also referred to as best management practices 
(``BMPs''). Non-numeric limits are employed under certain circumstances 
as provided in 40 CFR 122.44(k).
    Section III of the permit requires the permittee to undertake 
activities to meet baseline performance standards. These include non-
structural best management practices such as street sweeping; 
management of snow and deicing chemicals; management of solid waste and 
hazardous waste; management of landscaped areas and other good 
housekeeping measures.

Water Quality Based Effluent Limitations

    Consistent with the wasteload allocation of the Lower Charles River 
Phosphorus TMDL, Part IV and Appendix D of the permit establish 
requirements to assure a phosphorus load reduction of 65% from each 
designated discharge. The reduction can be achieved by any one or 
combination of three methods: (1) Enhanced non-structural BMPs; (2) 
structural BMPs; and (3) participation in a Certified Municipal 
Phosphorus Program (``CMPP''). A CMPP is an entity that may be 
established by a government unit to organize the activities of the 
permittees covered by this permit, with the goal of achieving 
environmental and economic efficiencies. The fact sheet discusses 
criteria that EPA may consider in approving a CMPP under the permit. 
Appendix D of the permit and its attachments provide methods to 
calculate phosphorus loads from a designated discharge and the load 
reductions that can be achieved through the implementation of 
structural and non-structural BMPs.
    Finally, the permit contains provisions requiring the proper 
operation and maintenance of BMPs, the submission of Annual 
Certifications of Compliance, and additional water quality based 
requirements, including those relating to attainment of Massachusetts 
water quality standards, new dischargers, and anti-degradation.

    Dated: April 6, 2010.
H. Curtis Spalding,
Regional Administrator, Region 1.
[FR Doc. 2010-9133 Filed 4-19-10; 8:45 am]
BILLING CODE 6560-50-P