[Federal Register Volume 75, Number 213 (Thursday, November 4, 2010)]
[Pages 67960-67962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-27904]




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.


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

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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 November 4, 2010 to December 
30, 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 December 30, 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: Kate Renahan, U.S. EPA-Region 1, Office of the 
Regional Administrator, 5 Post Office Square--Suite 100, Mail Code--
ORA01-1, 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-December 2, 2010, 
Lakeville Public Library (Large Meeting Room), 4 Precinct Street, 
Lakeville, MA 02347, 10:15 a.m.-11:15 a.m.
    The dates and times of any additional public meetings will be 
posted on EPA-Region 1's Web site at: http://www.epa.gov/region1/topics/water/stormwater.html.
    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: Thursday-
December 2, 2010, Lakeville Public Library (Large Meeting Room), 4 
Precinct Street, Lakeville, MA 02347, 11:30 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: Kate Renahan, Office of 
the Regional Administrator, Environmental Protection Agency, 5 Post 
Office Square--Suite 100, Mail Code: ORA01-1, Boston, MA 02109-3912; 
telephone: 617-918-1491; e-mail: [email protected].


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:
    MAR041000--Systems owned by traditional cities and towns.
    MAR042000- Systems owned by state or Federal entities.
    MAR04000I--Systems located on Indian Country Land within the 
Commonwealth of Massachusetts.
    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, but also includes recognition that other provisions in 
addition to MEP may be required under some circumstances. EPA believes 
implementation of best management practices (BMPs) designed to control 
stormwater 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 requires permittees to control 
stormwater discharges through 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 determined are

[[Page 67962]]

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 
    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 authorization will 
terminate earlier than the 180 days when a complete and accurate NOI 
has been submitted by the small MS4 and authorization is either granted 
or denied. If a permittee was authorized 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 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 designed to protect 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 include 
water quality-based effluent limitations for those discharges requiring 
additional controls in order to achieve water quality standards and 
other water quality related objectives. EPA invites comments on its 
approach to addressing water quality standards in this draft 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 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 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, as well as record keeping and reporting requirements.

    Dated: October 27, 2010.
H. Curtis Spalding,
Regional Administrator, Region 1.
[FR Doc. 2010-27904 Filed 11-3-10; 8:45 am]