[Federal Register Volume 82, Number 133 (Thursday, July 13, 2017)]
[Notices]
[Pages 32357-32359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-14731]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9964-85-Region 1]


Notice of EPA's Action To Postpone the Effective Date of the EPA 
Region 1 Clean Water Act National Pollutant Discharge Elimination 
System General Permits for Stormwater Discharges From Small Municipal 
Separate Storm Sewer Systems in Massachusetts

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Environmental Protection Agency (EPA) is providing notice 
that it took action to postpone the effective

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date of its Clean Water Act (CWA) National Pollutant Discharge 
Elimination System (NPDES) General Permits for Stormwater Discharges 
from Small Municipal Separate Storm Sewer Systems (MS4s) in 
Massachusetts. By its action, EPA postponed the July 1, 2017 effective 
date of the permit for one year, to July 1, 2018. EPA's postponement is 
available at: https://www3.epa.gov/region1/npdes/stormwater/MS4_MA.html.

DATES: Postponement date is June 29, 2017.

FOR FURTHER INFORMATION CONTACT: Thelma Murphy, Stormwater and 
Construction Permits Section OEP 06-4, Environmental Protection Agency, 
5 Post Office Square--Suite 100, Boston, Massachusetts 02109-3912; 
617.918.1615; email address: [email protected].

SUPPLEMENTARY INFORMATION: As stated in its postponement action, 
pursuant to section 705 of the Administrative Procedure Act (APA) (5 
U.S.C. 705), and for the reasons stated below, the EPA postponed the 
effective date of the EPA-issued General Permits for Stormwater 
Discharges from Small Municipal Separate Storm Sewer Systems (MS4s) in 
Massachusetts (Massachusetts permit) from July 1, 2017 to July 1, 2018.

I. Background

    EPA Region 1 issued the Massachusetts permit on April 4, 2016, with 
an effective date of July 1, 2017. Region 1 issued the previous general 
permit for Small MS4s in Massachusetts in 2003, which expired and was 
administratively continued for MS4s covered under that permit in 2008. 
EPA Region 1 issued the 2016 Massachusetts permit following issuance of 
the Commonwealth's CWA section 401 certification by the Massachusetts 
Department of Environmental Protection (MassDEP). The final 2016 
permits were jointly issued by EPA and MassDEP, along with EPA's 632-
page Response to Comments document.\1\
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    \1\ Although the Region issues NPDES permits in Massachusetts, 
the Commonwealth maintains separate permitting authority under 
Massachusetts law. See Mass. Gen. Laws ch. 21, Sec.  43; Mass. Code 
Regs. tit. 314. When the Region issues an NPDES permit in 
Massachusetts, MassDEP typically jointly issues a permit under state 
law. See In re City of Marlborough, 12 E.A.D. 235, 236 n.3 (EAB 
2005); In re Westborough, 10 E.A.D. 297, 300 n.2 (EAB 2002). EPA's 
action in postponing the effective date of the Massachusetts permit 
does not affect the requirements of the permit issued by MassDEP 
under Massachusetts law.
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    The Massachusetts Permit allows eligible small MS4s in 
Massachusetts to obtain NPDES permit coverage for their stormwater 
discharges. Approximately 260 towns and other municipalities, which 
include a number of state and federally owned entities such as 
colleges, Veterans Administration hospitals, prisons and military bases 
in Massachusetts, are eligible to seek coverage under the permit.
    Several parties filed petitions for review of the Massachusetts 
permit in the U.S. Court of Appeals for the D.C. Circuit. Petitioners 
are the Center for Regulatory Reasonableness (CRR), Conservation Law 
Foundation/Charles River Watershed Association, National Association of 
Homebuilders, the City of Lowell, and the Town of Franklin. The D.C. 
Circuit has consolidated these petitions. See Center for Regulatory 
Reasonableness, et al. v. EPA, No. 16-1246 (D.C. Circuit).
    On April 21, 2017, the D.C. Circuit granted CRR's motion to 
indefinitely stay the briefing deadlines. Under the original briefing 
schedule, petitioners would have filed their opening briefs on May 8, 
2017. CRR cited several justifications in its motion to stay the 
original briefing deadlines, including providing time for the New 
Hampshire small MS4 general permit's judicial review period to end, 
providing time to address certain questions about the administrative 
record, and deadlines that the petitioners were facing in non-related 
litigation. EPA did not oppose this motion. Motions to govern further 
proceedings are due July 20, 2017.
    On May 26, 2017, three of the petitioners (the Massachusetts 
Coalition of Water Resources, the City of Lowell, and the Town of 
Franklin, hereafter the ``Requestors'') submitted a letter asking EPA 
Region 1 to postpone the July 1, 2017 effective date for one year 
pending judicial review under section 705 of the APA.

II. Discussion

    Upon consideration of the request, and for the reasons set forth 
below, EPA determined that justice requires postponement of the 
effective date.\2\ Therefore, pursuant to APA section 705, EPA 
postponed the July 1, 2017 effective date for one year to July 1, 2018. 
EPA is providing notice of this postponement to the public, including 
all petitioners, all commenters, and all known potential permittees.
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    \2\ The Region 1 Regional Administrator is authorized to act on 
behalf of EPA in this matter pursuant to 40 CFR 124.19(l), which 
grants regional administrators the authority to issue final NPDES 
permit decisions, which includes determining when a permit will take 
effect.
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A. The Request

    The Requestors' May 26 letter asked EPA to postpone the July 1, 
2017 effective date of the Massachusetts permit in the ``interests of 
justice'' because, the Requestors asserted, (1) the permit represents a 
significant expansion of EPA's CWA authority and the court must decide, 
among other things, whether EPA acted within its bounds by requiring 
that discharges meet water quality standards in addition to meeting the 
Maximum Extent Practicable (``MEP'') standard; (2) it will align the 
Massachusetts permit's effective date with the effective date of the 
virtually identical New Hampshire small MS4 general permit, which was 
issued in January 2017, raises the same legal issues, and has also been 
challenged in the D.C. Circuit (as well as the 1st Circuit); and (3) 
although irreparable harm is not required for EPA to postpone the 
effective date under APA section 705, without it the towns will suffer 
irreparable harm by immediately expending resources that may ultimately 
prove to be unnecessary and wasted to avoid non-compliance and risk of 
enforcement.

B. Analysis

    In postponing the effective date of the Massachusetts permit, EPA 
stated in its findings that justice requires postponing the July 1, 
2017 effective date of the Massachusetts permit for one year pending 
judicial review. EPA would like to explore the use of alternative 
dispute resolution (ADR) in this case in order to engage with the 
various petitioners and jointly see if there might be a resolution that 
could avoid the need for litigation. EPA believes that it is fair to 
postpone the effective date of the permit so that eligible MS4s in 
Massachusetts that could seek coverage under the permit would not be 
subject to enforceable permit terms and conditions under the 
Massachusetts permit that could change as a result of ADR. Postponing 
the effective date for one year pending judicial review should give EPA 
ample time to determine what, if any, changes are appropriate in the 
permit and to determine next steps.
    Pending any such decision by the Agency, postponing the effective 
date of the permit for one year will postpone certain obligations--and 
the associated costs--that would otherwise be incurred in the first 
year's implementation of the Massachusetts permit. Such costs would 
include monetary and staff time for preparation and submittal of a 
Notice of Intent (NOI) to be covered by the permit. Also in the first 
year, in the absence of the postponement of the permit's

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effective date, the MS4s would have to update portions of their 
existing Stormwater Management Plans. Given the status of the 
litigation, the possibility that the parties will engage in ADR and 
that the Agency may decide to make changes to the permit, the Agency 
believes it is reasonable to defer imposition of these obligations and 
costs for the period of the postponement.
    Moreover, postponing the effective date by one year will have the 
benefit of matching the Massachusetts permit's effective date with the 
effective date of the New Hampshire small MS4 general permit, which EPA 
Region 1 issued on January 18, 2017 and will take effect on July 1, 
2018. Various parties have filed petitions for review of the New 
Hampshire permit in the D.C. Circuit, as well as one petition in the 
U.S. Court of Appeals for the First Circuit. EPA is also interested in 
exploring the use of ADR in that case. EPA has filed a motion with the 
First Circuit to transfer the petition that was filed there to the D.C. 
Circuit so that all of the New Hampshire petitions may be consolidated. 
Aligning the effective dates could promote efficiency in the resolution 
of both cases by facilitating the development of a unified ADR process 
that would address those issues raised in both permit appeals.

C. Conclusion

    Based on the above, EPA concluded that justice requires 
postponement of the effective date. Thus EPA postponed the July 1, 2017 
effective date of the Massachusetts permit for one year to July 1, 
2018.

    Dated: June 30, 2017.
Ken Moraff,
Acting Deputy Regional Administrator, EPA Region 1.
[FR Doc. 2017-14731 Filed 7-12-17; 8:45 am]
 BILLING CODE 6560-50-P