[Federal Register Volume 85, Number 79 (Thursday, April 23, 2020)]
[Notices]
[Pages 22735-22737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08645]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[EPA-R01-OW-2020-0216; FRL-10008-65-Region 1]


Notice of Availability of Proposed Modifications to NPDES General 
Permits for Stormwater Discharges From Small Municipal Separate Storm 
Sewer Systems in Massachusetts and New Hampshire

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Availability of Proposed Permit Modifications; 
Request for Public Comment.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is providing this 
notice of availability (NOA) for proposed limited modifications to the 
final National Pollutant Discharge Elimination System (NPDES) general 
permits for discharges of stormwater from small Municipal Separate 
Storm Sewer Systems (MS4s) in Massachusetts and New Hampshire under the 
Clean Water Act (CWA). The proposed modifications represent the results 
of mediation supervised by the U.S. Court of Appeals for the District 
of Columbia Circuit Mediation Program between EPA and petitioners the 
National Association of Homebuilders (NAHB), the Home Builders and 
Remodelers Association of Massachusetts, Inc. (HBRAMA), the New 
Hampshire Home Builders Association (NHHBA), the Center for Regulatory 
Reasonableness (CRR), the Massachusetts Coalition for Water Resources 
Stewardship (MCWRS), the Town of Franklin, Massachusetts (Franklin), 
the City of Lowell, Massachusetts (Lowell), the Conservation Law 
Foundation (CLF), and the Charles River Watershed Association (CRWA). 
EPA and the petitioners have entered into settlement agreements that 
include commitments for EPA to propose certain modifications to the 
2016 Massachusetts Small MS4 General Permit and the 2017 New Hampshire 
Small MS4 General Permit, and then to take final action on each 
proposal.

DATES: Written comments on the proposed permit modifications must be 
received by June 8, 2020.

ADDRESSES: Submit your comments, identified by Docket ID number EPA-
R01-OW-2020-0216, online at www.regulations.gov (EPA's preferred 
method). For comments submitted at www.regulations.gov, follow the 
online instructions for submitting comments. Once submitted, comments 
cannot be edited or removed from www.regulations.gov. The EPA may 
publish any comment received to its public docket. Do not submit 
electronically any information you consider to be Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Multimedia submissions (audio, video, etc.) must be 
accompanied by a written comment. The written comment is considered the 
official comment and should include discussion of all points you wish 
to make. The EPA generally will not consider comments or comment 
contents located outside of the primary submission (i.e. on the web, 
cloud, or other file sharing system). For additional submission 
methods, please contact the persons identified in the For Further 
Information Contact section. For the full EPA public comment policy, 
information about CBI or multimedia submissions, and general guidance 
on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Newton Tedder, Water Division, U.S. 
Environmental Protection Agency, Region 1, 5 Post Office Square, MC 06-
4 Boston, MA 02109; telephone number: 617-918-1038; email address: 
[email protected]; or
    Suzanne Warner, Water Division, U.S. Environmental Protection 
Agency, Region 1, 5 Post Office Square, MC 06-4, Boston, MA 02109; 
telephone number: 617-918-1383; email address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Additional Information About the Proposed Permit Modifications

    On April 4, 2016, EPA issued a final NPDES general permit for 
discharges of stormwater from small MS4s in Massachusetts (the MA MS4 
Permit) under CWA section 402(p). 33 U.S.C. 1342(p). On July 18, 2016, 
CRR filed a petition for review of the permit in the U.S. Court of 
Appeals for the D.C. Circuit. CLF, CRWA, MCWRS, Franklin, NAHB, HBRAMA, 
and the City of Lowell also filed petitions for review of the permit, 
all of which were consolidated with CRR's petition in the D.C. Circuit. 
Center for Regulatory Reasonableness, et al. v. EPA, No. 16-1246 (DC 
Cir.) (2016 Massachusetts Small MS4 General Permit consolidated cases). 
On January 18, 2017, EPA issued a final NPDES general permit for 
discharges of stormwater from small MS4s in New Hampshire (the NH MS4 
Permit). On February 1, 2017, CLF filed a petition for review of the 
permit in the U.S. Court of Appeals for the First Circuit. CRR, NAHB, 
and NHHBA later filed petitions for review in the D.C. Circuit. The 
First Circuit then transferred the CLF petition to the D.C. Circuit, 
where the D.C. Circuit consolidated it with the CRR, NAHB, and NHHBA 
petitions. Center for Regulatory Reasonableness et. al v. EPA, 
Conservation Law Foundation, Intervenor No. 17-1060 (DC Cir.) (2017 New 
Hampshire Small MS4 General Permit consolidated cases). The parties to 
both cases entered into mediation in 2017, and the D.C. Circuit has 
held the cases in abeyance. On December 27, 2019, EPA published three 
proposed settlement agreements in the Federal Register for a 30-day 
public comment period. See ``Proposed Settlement Agreements, Clean 
Water Act Claims,'' 84 FR 71407 (Dec. 27, 2019). EPA's planned proposed 
permit modifications to the Massachusetts and New Hampshire permits and 
statements of basis describing those proposed modifications were 
attached as Exhibits A and B to the Massachusetts and New Hampshire 
proposed settlement agreements. EPA and the petitioners executed the 
settlement agreements on April 15, 2020. The first two settlement

[[Page 22736]]

agreements describe the modifications that EPA is proposing to the MA 
MS4 Permit and NH MS4 Permit. Pursuant to the settlement agreements, 
the proposed permit modifications reflect the substantive agreements 
that parties reached during mediation. In the settlement agreements, 
the petitioners agree not to submit adverse public comments on the 
Draft Permit Modifications, except that the Petitioners reserve their 
rights to submit any form of comment on EPA's proposed modification to 
the NH MS4 permit Part 2.3.6.a, and the definitions of ``new 
development'' and ``redevelopment'' in NH MS4 permit Appendix A. The 
agreements specify that EPA will take final action on each proposed 
modification within nine months of posting this NOA of the Draft Permit 
Modifications; that petitioners will then dismiss their current 
petitions for review with prejudice; and that petitioners agree not to 
challenge EPA's respective final actions if they modify the permits in 
a manner substantially similar to the proposed modifications (with one 
exception, discussed in the New Hampshire settlement agreement). The 
third settlement agreement commits Lowell, Massachusetts to voluntarily 
dismiss its petition without prejudice and commits EPA to process 
Lowell's individual permit application and then to take final action on 
Lowell's individual permit application. Today's notice includes only 
the proposed MA MS4 and NH MS4 proposed permit modifications. EPA will 
propose an individual permit for Lowell at a later date.
    EPA is reopening, reexamining, and accepting comments on only the 
parts of the MA MS4 and NH MS4 permits that the proposed modifications 
specify. In the MA MS4 permit, only the following permit parts are open 
for modification and comment: parts 2.0; 2.1; 2.1.1; 2.1.2.a; 2.2.; 
2.2.2; 2.3.3; 2.3.5; 2.3.6; 2.3.7.a; 2.3.7.b; 4.1; 4.4; Appendix F part 
A.I; Appendix F part A.II; Appendix F Attachments 2 and 3; and Appendix 
H. In the NH MS4 permit, only the following permit parts are open for 
modification and comment: 2.0; 2.1; 2.1.1; 2.1.2.a; 2.2.; 2.2.2 
(paragraphs 2 and 3); 2.3.3.1; 2.3.5; 2.3.5.3; 2.3.6.a; 2.3.7.2.b.iii; 
3.1.3; 4.1.4; 4.4.2.3; Appendix A; Appendix F part III and Attachment 
3; and Appendix H.
    EPA has emailed notifications of the Draft Permit Modifications to 
regulated parties, parties to this mediation, and other interested 
parties on EPA Region 1's NPDES permit mailing list. For a period of 
forty-five (45) days following the date of publication of this notice, 
the Agency will accept written comments on the proposed permit 
modifications. Pursuant to 40 CFR 124.12(a), EPA may hold a public 
hearing during the comment period for any interested persons to submit 
oral comments. If EPA determines there is sufficient interest in a 
public hearing, EPA will post the details of the public hearing at EPA 
Region 1's website and will notify via email the petitioners, eligible 
permittees, and any other party who requests to be notified. EPA has 
requested that Massachusetts and New Hampshire provide a water quality 
certification pursuant to Section 401 of the Clean Water Act, 33 U.S.C. 
1341. After considering any significant public comments on the permit 
sections that are open for proposed modification, EPA will take final 
action on the Draft Permit Modifications within nine months of the 
Agency's posting of the NOAs of the Draft Permit Modifications on its 
website.
    Commenters must raise all reasonably ascertainable issues and 
submit all reasonably available arguments supporting their position by 
the close of the public comment period. Any supporting material which 
is submitted shall be included in full and may not be incorporated by 
reference, unless they are already part of the administrative record in 
this proceeding, or consist of state or federal statutes and 
regulations, EPA documents of general applicability, or other generally 
available reference materials.

II. Additional Information About Commenting on the Proposed Permit 
Modifications

    A. How can I get a copy of the proposed permit modifications? The 
official public docket for this action, EPA-R01-2020-0216, contains 
copies of the proposed permit modifications and statements of basis. 
These documents are also posted on EPA Region 1's website at https://www.epa.gov/npdes-permits/npdes-stormwater-permit-program-new-england#smallms4program. The official public docket is available for 
public viewing at U.S. EPA Region 1, John W. McCormack Building, 5 Post 
Office Square, Boston, MA 02109. Please contact the persons listed in 
FOR FURTHER INFORMATION CONTACT.
    An electronic version of the public docket is available through 
www.regulations.gov. You may use www.regulations.gov to submit or view 
public comments, access the index listing of the contents of the 
official public docket, and access those documents in the public docket 
that are available electronically. Once in the system, key in the 
appropriate docket identification number then select ``search.'' It is 
important to note that EPA's policy is that public comments, whether 
submitted electronically or in paper, will be made available for public 
viewing online at www.regulations.gov without change, unless the 
comment contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. Information claimed as CBI and 
other information whose disclosure is restricted by statute is not 
included in the official public docket or in the electronic public 
docket.
    EPA's policy is that copyrighted material, including copyrighted 
material contained in a public comment, will not be placed in EPA's 
electronic public docket but will be available only in printed, paper 
form in the official public docket. Although not all docket materials 
may be available electronically, you may still access any of the 
publicly available docket materials through the EPA Docket Center.

B. How and to whom do I submit comments?

    You may submit comments as provided in the ADDRESSES section. 
Please ensure that your comments are submitted within the specified 
comment period.
    Use of the www.regulations.gov website to submit comments to EPA 
electronically is EPA's preferred method for receiving comments. The 
electronic public docket system is an ``anonymous access'' system, 
which means EPA will not know your identity, email address, or other 
contact information unless you provide it in the body of your comment. 
In contrast to EPA's electronic public docket, EPA's electronic mail 
(email) system is not an ``anonymous access'' system. If you send an 
email comment directly to the Docket without going through 
www.regulations.gov, your email address is automatically captured and 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    If you submit an electronic comment, EPA recommends that you 
include your name, mailing address, and an email address or other 
contact information in the body of your comment and with any disk or CD 
ROM you submit. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. Any identifying or 
contact information provided in the body of a comment will

[[Page 22737]]

be included as part of the comment that is placed in the official 
public docket and made available in EPA's electronic public docket. If 
EPA cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
comment.

    Dated: April 17, 2020.
Dennis Deziel,
Regional Administrator, EPA Region 1.
[FR Doc. 2020-08645 Filed 4-22-20; 8:45 am]
 BILLING CODE 6560-50-P