Friday
November 16, 1990
Part II
Environmental
Protection Agency
40 CFR Parts 122, 123, and 124
National Pollutant Discharge Elimination
System Permit Application Regulations
for Storm Water Discharges; Final Rule
Printed on Recycled Paper
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47990
Federal Register / Vol. 55, No. 222 / Friday, November 16, 1990 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 122,123, and 124
CFRL-3834-7)
BIN 2040-AA79
National Pollutant Discharge
Elimination System Permit Application
Regulations for Storm Water
Discharges
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: Today's final rule begins to
implement section 402(p} of the Clean
Water Act (CWA) (added by section 405
of the Water Quality Act of 1987
(WQA)), which requires the
Environmental Protection Agency (EPA)
to establish regulations setting forth
National Pollutant Discharge
Elimination System (NPDES) permit
application requirements fan storm
water discharges associated with
Industrial activity; discharges from a
municipal separate storm sewer system
serving a population of 2!>0,000 or more;
and discharges from municipal separate
storm sewer systems serving a
population of 100.000 or more, but less
than 220.000.
Today's rule also clarifies the
requirements of section 401 of the WQA,
which amended CWA section 402(1)(2)
to provide that NPDES permits shall not
be required for discharges of storm
water runoff from mining operations or
oil and gas exploration, production,
processing, or treatment operations or
transmission facilities, composed
entirely of flows which are from
conveyances (including but not limited
to pipes, conduits, ditches, and
channels) used for collecting and
conveying precipitation runoff and
which are not contaminated by contact
with, or do not come into contact with,
any overburden, raw material,
intermediate product, finished product,
byproduct, or waste product located on
the site of such operations. This rule sets
forth NPDES permit application
requirements addressing storm water
discharges associated with industrial
activity and storm water discharges
from large and medium municipal
separate storm sewer systems.
DATES: This final rule becomes effective
Dncember 17,1990. In accordance with
40 CFR 23.2, this rule shall be considered
final for purposes of judicial review on
November 30,1990, at 1 p.m. eastern
daylight lime. The public record is
located at EPA Headquarters, EPA
Public Information Reference Unit, room
2402, 401 M Street SW., Washington DC
20460. A reasonable fee may be charged
for copying.
FOR FURTHER INFORMATION CONTACT:
For further information on the rule
contact: Thomas J. Seaton, Kevin Weiss,
or Michael Mitchell Office of Water
Enforcement and Permits (EN-336),
United States Environmental Protection
Agency. 401 M Street SW., Washington,
DC 20460, (202) 475-9518.
SUPPLEMENTARY INFORMATION:
I. Background and Water Quality Concerns
II. Water Quality Act of 1987
HI. Remand of 1984 Regulations
IV. Codification Rule and Case-by-Case
Designations
V. Consent Decree of October 20,1989
VI. Today's Final Rule and Response to
Comments
A. Overview
B. Definition of Storm Water
C. Responsibility for Storm Water
Discharges Associated with Industrial
Activity into Municipal Separate Storm
Sewers
D. Preliminary Permitting Strategy for
Storm Water Discharges Associated with
Industrial Activity
1. Tier 1—Baseline Permitting
2. Tier 2—Watershed Permitting
3. Tier 3—Industry Specific Permitting
4. Tier 4—Facility Specific Permitting
5. Relationship of Strategy to Permit
Application Requirements
a. Individual Permit Application
Requirements
b. Group Application
c. Case-by-Case Requirements
E. Storm Water Discharge Sampling
F. Storm Water Discharges Associated
with Industrial Activity
1. Permit Applicability
a. Storm Water Discharges Associated with
Industrial Activity to Waters of the
United States
b. Storm Water Discharges Through
Municipal Separate Storm Sewers
c. Storm Water Discharges Through Non-
Municipal Storm Sewers
2. Scope of "Associated with Industrial
Activity"
3. Individual Application Requirements
4. Group Applications
a. Facilities Covered
b. Scope of Group Application
c. Group Application Requirements
5. Group Application: Applicability in
NPDES States
8. Group Application: Procedural Concerns
7. Permit Applicability and Applications for
Oil, Gas and Mining Operations
a. Gas and Oil Operations
b. Use of Reportable Quantities to
Determine if a Storm Water Discharge
from an Oil or Gas Operation is
Contaminated
c. Mining Operations
8. Application Requirements for
Construction Activities
a. Permit application requirements
b. Administrative burdens
G. Municipal Separate Storm Sewer
Systems
1. Municipal Separate Storm Sewers
2. Effective Prohibition on Non-Storm
Water Discharges
3. Site-Specific Storm Water Quality
Management Programs for Municipal
Systems
4. Large and Medium Municipal Storm
Sewer Systems
a. Overview of proposed options and
comments
b. Definition of large and medium
municipal separate storm sewer system
c. Response to comments
H. Permit Application Requirements for
Large and Medium Municipal Systems
1. Implementing the Permit Program
2. Structure of Permit Application
a. Part 1 Application
b. Part 2 Application
3. Major Outfalls
4. Field Screening Program
5. Source Identification
6. Characterization of Discharges
a. Screening Analysis for Illicit Discharges
b. Representative Data
c. Loading and Concentration Estimates
7. Storm Water Quality Management Plans
a. Measures to Reduce Pollutants in Runoff
from Commercial and Residential Areas
b. Measures for Illicit Discharges and
Improper Disposal
c. Measures to Reduce Pollutants in Storm
Water Discharges Associated with
Industrial Activity Through Municipal
Systems
d. Measures to Reduce Pollutants in Runoff
from Construction Sites Through
Municipal Systems
8. Assessment of Controls
I. Annual Reports
). Application Deadlines
VII. Economic Impact
VIII. Paperwork Reduction Act
IX. Regulatory Flexibility Act
SUPPLEMENTARY INFORMATION:
I. Background and Water Quality
Concerns
The 1972 amendments to the Federal
•Water Pollution Control Act (referred to
. as the Clean Water Act or CWA),
prohibit the discharge of any pollutant
to navigable waters from a point sour.ce
unless the discharge is authorized by an
NPDES permit. Efforts to improve water
quality under the NPDES program
traditionally and primarily focused on
reducing pollutants in discharges of
industrial process wastewater and
municipal sewage. This program
emphasis developed for a number of
reasons. At the onset of the program in
1972, many sources of industrial process
wastewater and municipal sewage were
not adequately controlled and
represented pressing environmental
problems. In addition, sewage outfalls
and industrial process discharges were
easily identified as responsible for poor,
often drastically degraded, water quality
conditions. However, as pollution
control measures were initially
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Federal Register / Vol. 55. No. 222 / Friday. November 16. 1990 /JRules and Regulations 47991
developed for these discharges, it
became evident that more diffuse
sources (occurring over a wide area) of
water pollution, such as agricultural and
urban runoff were also major causes of
water quality problems. Some diffuse
sources of water pollution, such as
agricultural storm water discharges and
irrigation return flows, are statutorily
exempted from the NPDES program.
Since enactment of the 1972
amendments to the CWA, considering >
the rise of economic activity and
population, significant progress in
controlling water pollution has been
made, particularly with regard to
industrial process wastewater and
municipal sewage. Expenditures by
EPA, the States, and local governments
to construct and upgrade sewage
treatment facilities have substantially
increased the population served by
higher levels of treatment. Backlogs of
expired permits for industrial process
wastewater discharges have been
reduced. Continued improvements are
.expected for these discharges as the
NPDES program continues to place
increasing emphasis on water quality-
based pollution controls, especially for
toxic pollutants.
Although assessments of water
quality are difficult to perform and
verify, several national assessments of
water quality are available. For the
purpose of these assessments, urban
runoff was considered to be a diffuse
source or nonpoint source pollution.
From a legal standpoint, however,.most
urban runoff is discharged through
conveyances such as separate storm
sewers or other conveyances which are
point sources under the CWA. These
discharges are subject to. the NPDES
program. The "National Water Quality
Inventory, 1988 Report to Congress"
provides a general assessment of water
quality based on biennial reports
submitted by the States under section
305{b) of the CWA. In preparing the
section 305{b) Reports, the States were •
asked to indicate the fraction' of the
States' waters that were assessed, as
Well as the fraction of the Stat.es'-waters
tha t were fully supporting, -partly' -
supporting, or not supporting designated
uses. The Report indicates that of the
rivers, lakes, and estuaries that were
assessed by States (approximately one-
fifth of stream miles, one-third of lake
acres and one-half of estuarine waters),
roughly 70% to 75% are supporting the
uses for which .they are designated. For
waters with use impairments,,States.
were asked to determine impacts due to
diffuse sources (agricultural and urban
runoff and other sources), municipal,
sewage, industrial process wastewaters.
combined sewer overflows, and natural
and other sources, .then combine
impacts to arrive at estimates of the
relative percentage of State waters
affected by each source. In this manner,
the relative importance of the various
sources of pollution that are causing use
impairments was assessed and weighted
national averages were calculated.
Based on 37 States that provided
information on sources of pollution,
industrial process wastewaters were
cited as the cause of nonsupport for 7.5%
of rivers and streams, 10% of lakes, and
6% of estuaries. Municipal sewage was
the cause of nonsupport for 13% of rivers
and streams, 5% lakes, 48% estuaries,
41% of the Great Lake shoreline, and
11% of coastal waters. The Assessment
concluded that pollution from diffuse
sources, such as runoff from agricultural,
urban areas, construction sites, land.
disposal and resource extraction, is
cited by the States as the leading cause
""of water quality impairment. These
sources appear to be increasingly
important contributors of use
impairment as discharges of industrial
process wastewaters and municipal
sewage plants come under increased
control and as intensified data
collection efforts provide additional
information. Some examples of diffuse
sources cited as causing use impairment
are: for rivers and streams, 9% from
separate storm sewers, 6% from
construction and 13% from resource
extraction; for lakes, 28% from separate
storm sewers and 26% from land
disposal; for the Great Lakes shoreline,
10% from separate storm sewers. 34%
from resource extraction, and 82% from
land disposal:,for estuaries, 28% from
separate storm sewers and 27% from
land disposal; and for coastal areas, 20%
from separate storm sewers and 29%
from land disposal.
The States conducted a more
comprehensive study of diffuse pollution
sources under the sponsorship of the
Association of State and Interstate
Water Pollution Control Administrators
(ASIWPCA) and EPA. The study
resulted in the report "America's Clean
Water—The States' Nonpoint Source
Assessment, 1985" which indicated that
38 States reported urban runoff as a
major cause of beneficial use
impairment. In addition, 21 States
reported construction site runoff .as a
major cause of use impairment.
To provide a better understanding of
the nature of urban runoff from
commercial and residential areas, from
1978 through 1983. EPA provided funding
and guidance to the Nationwide Urban
Runoff Program {NURP}. The NURP;
included 28 projects across the Nation.
conducted separately at the local level
but centrally reviewed, coordinated, and
guided.
One focus of the NURP was to
characterize the water quality of
discharges from separate storm sewers
which drain residential, commercial,
and light industrial (industrial parks)
sites. The majority of samples collected
in the study were analyzed for eight
conventional pollutants and three
metals. Data collected under the NURP
indicated that on an annual loading
basis, suspended solids in discharges
from separate storm sewers draining
runoff from residential; commercial and
tight industrialareas are around an
order of magnitude greater than solids in
discharges from municipal secondary
sewage treatment plants. In addition.
the study indicated that annual loadings
of chemical oxygen demand (COD) are
comparable in magnitude to effluent
from secondary sewage treatment
plants. When analyzing annual loadings'
associated with urban runoff, it is
important to recognize that discharges
of urban runoff are highly intermittent.
and that the short-term loadings
associated with individual events will
be high and may have shockloading
effects on receiving water, such as low
dissolved oxygen levels. NURP data
also showed that fecal coliform counts
in urban runoff are typically in the tens
to hundreds of thousands per 100 ml of
runoff during warm weather conditions,
although the study suggested that fecal
coliform may not be the most
appropriate indicator organism for
identifying potential health risks in
storm water runoff. Although NURP did
not evaluate oil and grease* other
studies have demonstrated that urban
runoff is an extremely important source
of oil pollution to receiving waters, with
hydrocarbon levels in urban runoff
typically being reported at a range of 2
to 15 mg/1. These hydrocarbons tend to
accumulate in bottom sediments where
they may persist for long periods of time
and exert adverse impacts on benthic
organisms.
A portion of the NURP study involved
monitoring 120 priority pollutants in
storm water discharges from lands used
for residential,-commercial and light
industrial activities. Seventy-seven
priority pollutants were detected, in
•samples of storm.water discharges, from
residential, commercial and light
industrial.lands taken during the NURP
study, including 14 inorganic and 63
organic pollutants. Table A-l shows the
priority pollutants which-were detected
in at least ten percent of the discharge
samples which were sampled for
priority pollutants.
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.4.7992 Federal Register / Vol.. 55. No. 222 / Friday, November 16. 1990 / Rules and Regulations
TABLE A-1.— PRIORITY POLLUTANTS DE-
TECTED. IN AT LEAST 10% OF NURP
SAMPLES
tin percent]
MeUi* tod foorjHmtcs:
AnUmony „..„.
AIM nJc „.„.....,.,.....„..........,..,.„...
BeiyBum ............. _...................
Cadmium.. „
Chromium . — „..„.
Copper .........................................
Cyinld**..... „..,„
L»»d __...„.................. „
Nickel _zi jr.zzr.~z™
Selenium™™™ -»™ .......
2oe —™™. „„.„_„,;„...„ ...„
Pttlfekfec
AIph«-h«)ach)of ocydohoxano ....
AJpha-endosoHtn..... — ......
CNordtne „„„..„.„._.„.,.„..„„.
Undan*.... „_„„
H*Jooen«led «Sphatics:
Methane, dlchlorc- . ...
Phenol* and wesd*
Phenol „,„.„„„
Phenol, penUchJorc-
Phenol, 4-nttro ..„
Phthalale ettere:
Phthalate, bf*(2-alhylhexyl)
Pdycycte aromatic hydrocarbons:
CtxyMne,,........,... ........ ..................
Fluof anttwfw -......_..
PhwunUvene........
Pynfte »»»»»»..»»».»..»»..»..„......
Frequency of
detection
13
52
12
48
58
91
23
94
43
11
94
20
19
17
15
11
14
19
10
22
10
16
12
15
The NURP data also showed a
significant number of these samples
exceeded various EPA freshwater water
quality criteria.
The NURP study provides insight on
what can be considered background
levels of pollutants for urban runoff, as
the study focused primarily on
monitoring runoff from residential,
commercial and light industrial areas.
However, NURP concluded that the
quality of urban runoff can be adversely
impacted by several sources of
pollutants that were not directly
evaluated in the study and are generally
not reflected in the NURP data,
including Illicit connections,
construction site runoff, industrial site
runoff and illegal dumping.
Other studies have shown that many
atorm sewers contain illicit discharges
of non-storm water and that large
amounts of wastes, particularly used
oils, are improperly disposed in storm
sewers. Removal of these discharges
present opportunities for dramatic
improvements in the quality of storm
water discharges. Storm water
discharges from industrial facilities may
contain toxics and conventional
pollutants when material management
practices allow exposure to storm water,
In addition to wastes from illicit
connections and improperly disposed
•wattes.
In some municipalities, illicit
connections of sanitary, commercial and
industrial discharges to storm sewer
systems have had a significant impact
on the water quality of receiving waters.
Although the NURP study did not
emphasize the identification of illicit
connections to storm sewers (other than
to assure that monitoring sites used in
the study were free from sanitary
sewage contamination), the study
concluded that illicit connections can
result in high bacterial counts and
dangers to public health. The study also
noted that removing such discharges
presented opportunities for dramatic
improvements in the quality of urban
storm water discharges.
Studies have shown that illicit
connections to storm sewers can create
severe, wide-spread contamination
problems. For example, the Huron River
Pollution Abatement Program inspected
660 businesses, homes and other
buildings located in Washtenaw County,
Michigan and identified 14% of the
buildings'as having improper storm
drain connections. Illicit discharges
were detected at a higher rate of 60% for
automobile related businesses, including
service stations, automobile dealerships,
car washes, body shops and light
industrial facilities. While some of the
problems discovered in this study were
the result of improper plumbing or illegal
connections, a majority were approved
connections at the time they were built.
Intensive construction activities may
result in severe localized impacts on
water quality because of high unit loads
of pollutants, primarily sediments.
Construction sites can also generate
other pollutants such as phosphorus and
nitrogen from fertilizer, pesticides,
petroleum products, construction
chemicals and solid wastes. These
materials can be toxic to aquatic
organisms and degrade water for
drinking and water-contact recreation.
Sediment loadings rates from
construction sites are typically 10 to 20
times that of agricultural lands, with
runoff rates as high as 100 times that of
agricultural'lands, and typically 1,000 to
2,000 times that of forest lands. Even a
small amount of construction may have
a significant negative impact on water
quality in localized areas. Over a short
period of time, construction sites can
contribute more sediment to streams
than was previously deposited over
several decades.
II. Water Quality Act of 1987
The WQA contains three provisions
which specifically address storm water
discharges. The central WQA provision
governing storm water discharges is
section 405, which adds section 402(p) to
the CWA. Section 402(p)(l) provides
that EPA or NPDES States cannot
require a permit for certain storm water
discharges until October 1,1992, except:
for storm water discharges listed under
section 402(p)(2). Section 402(p)(2) lists
five types of storm water discharges
which are required to obtain a permit
prior to October 1,1992:
(A) A discharge with respect to which
a permit has been issued prior to
February 4,1987;
(B) A discharge associated with
industrial activity;
(C) A discharge from a municipal
separate storm sewer system serving a
population of 250,000 or more;
(D) A discharge from a municipal
separate storm sewer system serving a
population of 100,000 or more, but less
than 250,000; or
(E) A discharge for which the
Administrator or the State, as the case
may be, determines that the storm water
discharge contributes to a violation of a
water quality standard or is a significant
contributor of pollutants to the waters of
the United States.
Section 402(p)(4)(A) requires EPA to
promulgate final regulations governing
storm water permit application
requirements for storm water discharges
associated with industrial activity and
discharges from large municipal
separate storm sewer systems (systems
serving a population of 250,000 or more),
"no later than two years" after the date
of enactment (i.e., no later than
February 4,1989). Section 402(p)(4)(B)
also requires EPA to promulgate final
regulations governing storm water
permit application requirements for
discharges from medium municipal
separate storm sewer systems (systems
serving a population of 100,000 or more
but less than 250,000) "no later than four
years" after enactment (i.e., no later
than February 4,1991).
In addition, section 402(p)(4) provides
that permit applications for storm water,
discharges associated with industrial
activity and discharges from large
municipal separate storm sewer systems
"shall be filed no later than three years"
after the date of enactment of the WQA
(Le., no later than February 4,1990).
Permit applications for discharges from
medium municipal systems must be filed
"no later than five years" after
enactment (i.e., no later than February 4,
1992).
The WQA clarified and amended the
requirements for permits for storm water
discharges in the new CWA section
402(p)(3). The Act clarified that permits
for discharges associated with industrial
activity must meet all of the applicable
provisions of section 402 and section 301
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Federal Register / Vol. 55. No. 222. / Friday, November 16, 1990 / Rules and Regulations 47993
including technology and water quality
based standards. However, the new Act
makes significant changes to the permit
standards for discharges from municipal
storm sewers. Section 402{p)(3)(B)
provides that permits for such
discharges:
(i) May be issued on a system- or
jurisdiction-wide basis;
(!i) Shall include a requirement to
effectively prohibit non-storm water
discharges into the storm sewers; and
(iii) Shall require controls to reduce the
discharge of pollutants to the maximum
extent practicable, including management
practices, control techniques and system,
design and engineering methods, and such
other provisions as the Administrator or the
State determines appropriate for the control
of such pollutants.
These changes are discussed in more
detail later in today's rule.
The EPA, in consultation with the
States, is required to conduct two
studies on storm water discharges that
are in the class of discharges for which
EPA and NPDES States cannot require
permits prior to October 1,1992. The
first study will identify those storm
water discharges or classes of storm
water discharges for which permits are
not required prior to October 1,1992,
and determine, to the maximum extent
practicable, the nature and extent of
pollutants in such discharges. The
second study is for the purpose of
establishing procedures and methods to
control storm water discharges to the
extent necessary to mitigate impacts on
water quality. Based on the two studies
the EPA, in consultation with State and
local officials, is required to issue
regulations no later than October 1,
1S92, which designate additional storm
water discharges to be regulated to
protect water quality and establish a
comprehensive program to regulate such
designated sources. This program must,
at a minimum, (A) Establish priorities,
(B) establish requirements for State
storm water management programs, and
(C) establish expeditious deadlines. The
program may include performance
standards, guidelines, guidance, and
management practices and treatment
requirements, as appropriate.
Section 401 of the WQA amends
section 402(13(2) of the CWA to provide
that the EPA shall not require a permit
for discharges of storm water runoff
from mining operations or oil and gas
exploration, production, processing, or
treatment operations or transmission
facilities if the storm water discharge is
not contaminated by contact with, or
does not come into contact with, any
overburden, raw material, intermediate
product, finished product, byproduct, or
waste product located on the site of
such operations.
Section 503 of the WQA amends
section 502(14) of the CWA to exclude
agricultural storm water discharges from
the definition of point source.
III. Remand of 1984 Regulations
On December 4,1987, the United
States Court of Appeals for the District
of Columbia Circuit vacated 40 CFR
122.26, (as promulgated on September
26,1984, 49 FR 37998, September 26,
1984), and remanded the regulations to
EPA for further rulemaking (NRDC v.
EPA, No. 80-1607). EPA had requested
the remand because of significant
changes made by the storm water
provisions of the WQA. The effect of the
decision was to invalidate the storm
water discharge regulations then found
at § 122.26.
Storm water discharges which had
been issued an NPDES permit prior to
February 4,1987, were not affected by
the Court remand or the February 12,
1988, rule implementing the court order
(53 FR 4157). (See section 402(p)(2)(A) of
the CWA.) Similar y, the remand did not
affect the authority of EPA or an NPDES
State to require a permit for any storm
water discharge (except an agricultural
storm water discharge) designated
under section 402(p)(2)(E) of the CWA.
The notice of the remand clarified that
such designated discharges meet the
regulatory definition of point source
found at 40 CFR 122.2 and that EPA or
an NPDES State can rely on the
statutory authority and require the filing
of an application (Form 1 and Form 2C)
for an NPDES permit with respect to
such discharges on a case-by-case basis.
IV. Codification Rule and Case-by-Case
Designations
Codification Rule
On January 4,1989. (54 FR 255), EPA
published a final rule which codified
numerous provisions of the WQA into
EPA regulations. The codification rule
included several provisions dealing with
storm water discharges. The codification
rule promulgated the language found at
section 402(p) (1) and (2) of the amended
Clean Water Act at 40 CFR 122.26(a)(l).
In addition, the codification rule
promulgated the language of Section 503
of the WQA which exempted
agricultural storm water discharges from
the definition of point source at 40 CFR
122.2. and section 401 of the WQA
addressing uncontaminated storm water
discharges from mining or oil and gas
operations at 40 CFR 122.26(a)(2).
EPA also codified the statutory
authority of section 402(p)(2)(E) of the
CWA for the Administrator or the State
Director, as the case may be, to
designate storm water discharges for a
permit on a case-by-case basis at 40
CFR 122.26(a)(l)(v).
Cose by Case Designations
Section 402(p)(2)(E) of the CWA
authorizes case-by-case designations of
storm water discharges for immediate
permitting if the Administrator or the
State Director determines that the storm
water discharge contributes to a
violation of a water quality standard or
is a significant contributor of pollutants
to waters of the United States.
In determining that a storm water
discharge contributes to a violation of a
water quality standard or is a significant
contributor of pollutants to waters of the
United States for the purpose of a
designation under section 402(p)(2)(E),
the legislative history for the provision
provides that "EPA or the State should
use any available water quality or
sampling data to determine whether the
latter two criteria (contributes to a
violation of a water quality standard or
is a significant contributor of pollutants
to waters of the United States) are met,
and should require additional sampling
as necessary to determine whether or
not these criteria are met." Conference
Report, Cong. Rec. S16443 (daily ed.
October 16,1986). In accordance with
this legislative history, today's rule
promulgates permit application
requirements for certain storm water
discharges, including discharges
designated on a case-by-case basis. EPA
will consider a.number of factors when
determining whether a storm water
discharge is a significant contributor of
pollution to the waters of the United
States. These factors include: the
location of the discharge with respect to
waters of the United States; the size of
the discharge; the quantity and nature of
the pollutants reaching waters of the
United States; and any other relevant
factors. Today's rule incorporates these
factors at 40 CFR 122.26{a}(l)(v).
Under today's rule, case-by-case
designations are made under regulatory
procedures found at 40 CFR 124.52. The
procedures at 40 CFR 124.52 require that
whenever the Director decides that an
individual permit is required, the
Director shall notify the discharger in
writing that the discharge requires a
permit and the reasons for the decision'.
In addition, an application form is sent
with the notice. Section 124.52 provides
a 60 day period from the date of notice
for submitting a permit application.
Although this 60 day period may be
appropriate for many designated storm
water discharges, site specific factors
may dictate that the Director provide
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47994 Federal Register / Vol. 55, No. 222 / Friday, November 16. 1990 /Rules and Regulations
additional time for submitting a permit
application. For example, due to the
complexities associated with
designation of a municipal separate
storm sewer system for a system- or
jurisdiction-wide permit, the Director
may provide the applicant with
additional time to submit relevant
information or may require that
information be submitted in several
phases.
V. Consent Decree of October 20,1989
On April 20,1989, EPA was served
notice of intent to sue by Kathy
Williams et at, because of the Agency's
failure to promulgate final storm
regulations on February 4,1989,
pursuant to Section 402(p)(4) of the
CWA. A suit was filed by the same
party on July 20,1989, alleging the same
cause of action, to wit: the Agency's
failure to promulgate regulations under
section 402(p)(4) of the CWA. On
October 20,1989, EPA entered into a
consent decree with Kathy Williams et
al, wherein the Federal District Court,
District of Oregon, Southern Division,
decreed that the Agency promulgate
final regulations for storm water
discharges identified in sections
402(p)(2) (B) and (C) of the CWA no
later than July 20,1990. Kathy Williams
et at., v. William K. Reilly.
Administrator, et al., No. 89-6265-E (D-
Ore.) In July 1990. the consent degree
was amended to provide for a
promulgation date of October 31.
Today's rule Is promulgated in
compliance with the terms of the
consent decree as amended.
VI. Today's Final Rule and Response to
Comments
A, Overview
Section 405 of the WQA alters the
regulatory approach to control
pollutants in storm water discharges by
adopting a phased and tiered approach.
The new provision phases In permit
application requirements, permit
Issuance deadlines and compliance with
permit conditions for different
categories of storm water discharges.
The approach Is tiered in that storm
water discharges associated with
Industrial activity must comply with
sections 301 and 402 of the CWA
(requiring control of the discharge of
pollutants that utilize the Best Available
Technology (BAT) and the Best
Conventional Pollutant Control
Technology (BCT) and where necessary,
water quality-based controls), but
permits for discharges from municipal
separate storm sewer systems must
require controls to reduce the discharge
of pollutants to the maximum extent
practicable, and where' necessary water
quality-based controls, and must include
a requirement to effectively prohibit
non-storm water discharges into the
,storm sewers. Furthermore, EPA in
consultation with State and local
officials must develop a comprehensive
program to designate and regulate other
storm water discharges to protect water
quality.
This final regulation establishes
requirements for the storm water permit
application process. It also sets forth the
required components of municipal storm
water quality management plans, as
well as a preliminary permitting strategy
for industrial activities. In implementing
these regulations, EPA and the States
will strive to achieve environmental
results in a cost effective manner by
placing high priority on pollution
prevention activities, and by targeting
activities based on reducing risk from
particularly harmful pollutants and/or
from discharges to high value waters.
EPA and the States will also work with
applicants to avoid cross media
transfers of storm water contaminants,
especially through injection to shallow
wells in the Class V Underground
Injection Control Program.
In addition, EPA recognizes that
problems associated with storm water,
combined sewer overflows (CSOs) and
infiltration and inflow (I&I) are all inter-
related even though they are treated
somewhat differently under the law.
EPA believes that it is important to
begin linking these programs and
activities and, because of the potential
cost to local governments, to investigate
the use of innovative, non-traditional
approaches to reducing or preventing
contamination of storm water.
The application process for
developing municipal storm water
management plans provides an ideal
opportunity between steps 1 and 2 for
considering the full range of
nontraditional, preventive approaches,
including municipalities, public
awareness/education programs, use of
vegetation and/or land conservancy
practices, alternative paving materials,
creative ways to eliminate I&I and
illegal hook-ups, and potentials for
water reuse. EPA has already
announced its plans to present an award
for the best creative, cost effective
approaches to storm water and CSOs
beginning in 1991.
This rulemaking establishes permit
application requirements for classes of
storm water discharges that were
specifically identified in section
402(p)(2). These priority storm water
discharges include storm water
discharges associated with industrial
activity and discharges from a municipal
separate storm sewer serving a
population of 100,000 or more.
This rulemaking was developed after
careful consideration of 450 sets of
comments, comprising over 3200 pages,
that were received from a variety of
industries, trade associations,
municipalities, State and Federal
Agencies, environmental groups, and
private citizens. These comments were
received during a 90-day comment
period which extended from December
7,1988, to March 7,1989. EPA received
several requests for an extension of the
comment period from 30-days up to 90-
days. Many arguments were advanced
for an extension including: the extent
and complexity of the proposal, the
existence of other concurrent EPA
proposals, and the need for technical
evaluations of the proposal. EPA
considered these comments as they
were received, but declined to extend
the comment period beyond 90 days.
The standard comment period on
proposals normally range from 30 to 60
days. In light of the statutory deadline of
February 4,1989, additional time for the
comment period beyond what was
already a substantially lengthened
comment period would have been
inappropriate. The number and extent of
the comments received on this proposal
indicated that interested parties had
substantially adequate time to review
and comment on the regulation.
Furthermore, the public was invited to
attend six public meetings in
Washington DC, Chicago, Dallas,
Oakland, Jacksonville, and Boston to
present questions and comments. EPA is
convinced that substantial and adequate
public participation was sought and
received by the Agency.
Numerous commenters have also
requested that the rule be reproposed
due to the extent of the proposal and the
number of options and issues upon
which the Agency requested comments.
EPA has decided against a reproposal.
The December 7,1988, notice of
proposed rulemaking was extremely
detailed and thoroughly identified major
issues in such a manner as to allow the
public clear opportunities to comment.
The comments that were received were
extensive, and many provided valuable
information and ideas that have been
incorporated into the regulation.
Accordingly, the Agency is confident it
has produced a workable and rational
approach to the initial regulation of
storm water discharges and a regulation
that reflects the experience and
knowledge of the public as provided in
the comments, and which was
developed in accordance with the
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Federal Register /Vol. 55, No. 222 / Friday, November 16, 1990 /Rules and Regulations 47995
procedural requirements of the
Administrative Procedures Act (APA).
EPA believes that while the number of
issues raised by the proposal was
extensive, the number of detailed
comments indicates that the public was
able to understand the issues in order to
comment adequately. Thus, a reproposal
is unnecessary.
B. Definition of Storm Water
The December 7,1988, notice
requested comment on defining storm
water as storm water runoff, surface
runoff, street wadh waters related to
street cleaning or maintenance,
infiltration (other than infiltration
contaminated by seepage from sanitary
sewers or by other discharges) and
drainage related to storm events or
snow melt. This definition is consistent
with the regulatory definition of "storm
sewer" at 40 CFR 35.2005(b)(47) which is
used in the context of grants for
construction of treatment works. This
definition aids in distinguishing separate
storm water sewers from sanitary
sewers, combined sewers, process
discharge outfalls and non-storm water.
non-process discharge outfalls.
The definition of "storm water" has
an important bearing on the NPDES
permitting scheme under the CWA. The
following discusses the interrelationship
of NPDES permitting requirements for
storm water discharges addressed by
this rule and NPDES permitting
requirements for other non-storrawater
discharges which may be discharged via
the storm sewer as a storm water
discharge. Today's rule addresses
permit application requirements for
storm water discharges associated with
industrial activity and for discharges
.from municipal separate storm sewer
systems serving a population of 100,000
or more. Storm water discharges
associated with industrial activity are to
be covered by permits which contain
technology-based controls based on
BAT/BCT considerations or water
quality-based controls, if .necessiry. A
permit for storm water discharges from
an industrial facility may also cover
other non-storm water discharges from
the facility. Today's rule establishes
individual (Form 1 and Forji 2F) and
group application requiremenVa for
1 storm water discharges associated with
industrial activity. In addition, ®A or
authorized NPDES States with " ]
authorized general permit programs may
issue general permits which establish
alternative application or notification
requirements for storm water discharges
covered by the general permits). Where
a storm water discharge associated with
industrial activity is mixed with a non-
storm water discharge, both discharges
I
must be covered by an NPDES permit
(this can be in the same permit or with
multiple permits). Permit application
requirements for these "combination"
discharges are discussed later in today's
notice.
Today's rule also addresses permit
application requirements for discharges
from municipal separate storm sewer
systems serving a population of 100,000
or more. Under today's rule, appropriate
municipal owners or operators of these
systems must obtain NPDES permits for
discharges from these systems. These
permits are to establish controls to the
maximum extent practicable (MEP),
effectively prohibit non-storm water
discharges to the municipal separate
storm sewer system and, where
necessary, contain applicable water
quality-based controls. Where non-
storm water discharges or storm water
discharges associated with industrial
activity discharge through a municipal
separate storm sewer system (including
systems serving a population of 100,000
or more as well as other systems), which
ultimately discharges to a waters of the
United States, such discharges through a
municipal storm sewer need to be
covered by an NPDES permit that is
independent of the permit issued for
discharges from the municipal separate
storm sewer system. Today's rule
defines the term "illicit discharge" to
describe any discharge, through a
municipal separate storm sewer that is
not composed entirely of storm water
and that is not covered by an NPDES
permit. Such illicit discharges are not
authorized under the CWA. Section
402(p)(3)(B) of the CWA requires that
permits for discharges from municipal
separate storm sewers require the
municipality to "effectively prohibit"
non-storm water discharges from the
municipal separate storm sewer. As
discussed in more detail below, today's
rule begins to implement the "effective
prohibition" by requiring municipal
operators of municipal separate storm
sewer systems serving a population of
100,000 or more to submit a description
of a program to detect and control
certain non»storm water discharges to
their municipal system. Ultimately, such
non-storm water discharges through a
municipal separate storm sewer must
either be removed from the system or
become subject to an NPDES permit
(other than the permit for the discharge
from the municipal separate storm
sewer). For reasons discussed in more
detail below, in general, municipalities
will not be held responsible for
prohibiting some specific components of
discharges or flows listed below through
their municipal separate storm sewer
system, even though such components
may be considered non-storm water
discharges, unless such discharges are
specifically identified on a case-by-case
basis as needing to be addressed.
However, operators of such non-storm
water discharges need to obtain NPDES
permits for these discharges under the
present framework of the CWA (rather
than the municipal operator of the
municipal separate storm sewer system).
(Note that section 516 of the Water
Quality Act of 1987 requires EPA to
conduct a study of de minimis
discharges of pollutants to waters of the
United States and to determine the most
effective and appropriate methods of
regulating any such discharges.)
EPA received numerous comments on
the proposed regulatory definition of
storm water, many of which proposed
exclusions or additions to the definition.
Several commenters suggested that the
definition should include or not include
detention and retention reservoir
releases, water line flushing, fire
hydrant flushing, runoff from fire
fighting, swimming pool drainage and
discharge, landscape irrigation, diverted
stream flows, uncontaminated pumped
ground water, rising ground waters,
discharges from potable water sources,
uncontaminated waters from cooling
towers, foundation drains, non-contact
cooling water (such as HVAC or
heating, ventilation and air conditioning
condensation water that POTWs require
to be discharged to separate storm
sewers rather than sanitary sewers),
irrigation water, springs, roof drains,
water from crawl space pumps, footing
drains, lawn watering, individual car
washing, flows from riparian habitats
and wetlands. Most of these comments
were made with regard to the concern
that these were commonly occurring
discharges which did not pose
significant environmental problems. It
was also noted that, unless these flows
are classified as storm water, permits
would be required for these discharges.
In response to the comments which
requested EPA to define the term "storm
water" broadly to include a number of
classes of discharges which are not in
any way related to precipitation events,
EPA believes that this rulemaking is not
an appropriate forum for addressing the
appropriate regulation under the NPDES
program of such non-storm water
discharges, even though some classes of
non-storm water discharges may
typically contain only minimal amounts
of pollutants. Congress did not intend
that the term storm water be used to
describe any discharge that has a de
minimis amount of pollutants, nor did it
intend for section 402(p) to be used to
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47996 Federal Register / Vol. 55. No. 222 / Friday. November 16. 1990 / Rules and Regulations
provide a moratorium from permitting
other non-storm water discharges.
Consequently, the final definition of
storm water has not been expanded
from what was proposed. However, as
discussed in more detail later in today's
notice, municipal operators of municipal
separate storm sewer systems will
generally not be held responsible for
"effectively prohibiting" limited classes
of these discharges through their'
municipal separate storm sewer
systems. '
The proposed rule included
infiltration in the definition of storm
water. In this context one comm'enter
suggested that the term infiltration be
defined. Infiltration is defined at 40 CFR
35.2005{b)(20) as water other than
wastewater that enters a sewer system
(including sewer service connections
and foundation drains) from the ground
through such means as defective pipes,
pipe joints, connections or manholes.
Infiltration does not include, and is
distinguished from, inflow. Another
commenter urged that ground water
Infiltration not be classified as storm
water because the chemical
characteristics and contaminants of
ground water will differ from surface
storm water because of a longer contact
period with materials in the soil and
because ground water quality will not
reflect current practices at the site. In
today's rule, the definition of storm
water excludes infiltration since
pollutants in these flows will depend on
a large number of factors, including
Interactions with soil and past land use
practices at a given site. Further
infiltration flows can be contaminated
by sources that are not related to
precipitation events, such as seepage
from sanitary sewers. Accordingly the
final regulatory language does not
Include infiltration in the definition of
storm water. Such flows may be subject
to appropriate permit conditions in
industrial permits. As discussed in more
detail below, municipal management
programs must address infiltration
where identified as a source of
pollutants to waters of the United
States.
One commenter questioned the status
of discharges from detention and
retention basins used to collect storm
water. This regulation covers discharges
of storm water associated with
Industrial activity and discharges from
municipal separate storm sewer systems
serving a population of 100.000 or more
into waters of the United States.
Therefore, discharges from basins that
are part of a conveyance system for a
storm water discharge associated with
Industrial activity or part of a municipal
separate storm sewer system serving a
population of 100,000 or more are
covered by this regulation. Flows which
are channeled into basins and which do
not discharge into waters of the United
States are not addressed by today's rule.
Several commenters requested that
the term illicit connection be replaced
with a term that does not connote illegal
discharges or activity, because many
discharges of non-storm water to
municipal separate storm sewer systems
occurred prior to the establishment of
the NPDES program and in accordance
with local or State requirements at the
time of the-connection. EPA disagrees
that there should be a change in this
terminology. The fact that these
connections were at one time legal does
not confer such status now. The CWA
prohibits the point source discharge of
non-storm water not subject to an
NPDES permit through municipal
separate storm sewers to waters of the
United States. Thus, classifying such
discharges as illicit properly identifies
such discharges as being illegal.
A commenter wanted clarification of
the terms "other discharges" and
"drainage" that are used in the
definition of "storm water." As noted
above, today's rule clarifies that
infiltration is not considered storm
water. Thus the portion of the definition
of storm water that refers to "other
discharges" has also been removed.
However, the term drainage has been
retained. "Drainage" does not take on
any meaning other than the flow of
runoff into a conveyance, as the word is
commonly understood.
One commenter stated that irrigation
flows combined with storm water
discharges should.be excluded from
consideration in the storm water
program. The Agency would note that
irrigation return flows are excluded from
regulation under the NPDES program.
Section 402(1)(1) states that the
Administrator or the State shall not
require permits for discharges composed
entirely of return flows from irrigated
agriculture. The legislative history of the
1977 Clean Water Act, which enacted
this language, states that the word
"entirely" was intended to limit the
exception to only those flows which do
not contain additional discharges from
activities unrelated to crop production.
Congressional Record Vol. 123 (1977),
pg. 4360, Senate Report No. 95-370.
Accordingly, a storm water discharge
component, from an industrial facility
for example, included in such "joint"
discharges may be regulated pursuant to
an NPDES permit either at the point at
which the storm water flow enters or
joins the irrigation flow, or where the
combined flow enters waters of Ihe
United States or a municipal separate
storm sewer.
Some commenters expressed conno-n
about including street wash waters as
storm water. One commenter argued
including street wash waters in the
definition of storm water should no! be
construed to eliminate the need for
management practices relating to
construction activities where sediment
may simply wash into storm drains. FPA
agrees with these points and the
concerns that storm sewers may receive
material that pose environmental
problems if street wash waters are
included in the definition. Accordingly,
such discharges are no longer in the
definition as proposed, and must be
addressed by municipal management
programs as part of the prohibition on
non-storm water discharges through
municipal separate storm sewer
systems.
Several commenters requested that
the terms discharge and point source, in
the context of permits for storm water
discharge, be clarified. Several
commenters stated that the EPA should
clarify that storm water discharge does
not include "sheet flow" off of an
industrial facility. EPA interprets this as
request for clarification on the status of
the terms "point source" and
"discharge" under these regulations. In
response, this rulemaking only covers
storm water discharges from point
sources. A point source is defined at 40
CFR 122.2 as "any discernible, confined,
and discrete conveyance, including but
not limited to. any pipe, ditch, channel,
tunnel, conduit, well, discrete fissure,
container, rolling stock, concentrated
animal feeding operation, landfill
leachate collection system, vessel or
other floating craft from which
pollutants are or may be discharged.
This term does not include return flows
from irrigated agriculture or agricultural
storm water runoff." EPA agrees with
one commenter that this definition is
adequate for defining what discharges of
storm water are covered by this
rulemaking. EPA notes that this
definition would encompass municipal
separate storm sewers. In view of this
comprehensive definition of point
source, EPA need clarify in this
rulemaking only that a storm water
discharge-subject to NPDES regulation
does not include storm water that enters
the waters of the United States via
means other than a "point source." As
further discussed below, storm water
from an industrial facility which enters
and is subsequently discharged through
a municipal separate storm sewer is a
"discharge associated with industrial
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Federal Register J VoL 55; No. 222 / Friday. November 1$ 1990-f «ok»
47997
activity" which must be covered by an
individual or general permit pursuant to
today's rule.
EPA would also note that individual
facilities have the burden of determining
whether a permit application should be
submitted to address a point source
discharge. Those unsure of the
classification of storm water flow from a
facility, should file permit applications
addressing the flow,, or prior to
submitting the application consult
permitting authorities for clarification.
One commenter stated that "point
source" for this rulemaking should be
defined, for the purposes of achieving
better water quality, as those areas
where "discharges leave the municipal
[separate storm sewer] system." EPA
'notes in response that "point source" as
currently defined will address such
discharges, while keeping the definition
of discharge and point source within the
framework of the NPDES program, and.
without adding potentially confusing •
and ambiguous additional definitions to
the regulation. If this comment is
asserting that the term point source
should not include discharges from
sources through the municipal system,
EPA disagrees. As discussed in detail
below, discharges through municipal
separate storm sewer systems which are
not connected to an operable treatment
works are discharges subject to NPDES
permit requirements at [40 CFR 122.3fc)}.
and may properly be deemed point
sources.
One industry argued that the
definition of "point source" should be
modified for storm water discharges so
as to exclude discharges from land that
is not artificially graded and which has
a propensity to form channels where
precipitation runs off. EPA intends to
embrace the broadest possible definition
of point source consistent with the
legislative intent of the CWA and court
interpretations to include any
identifiable conveyance from which
pollutants might enter the waters of the
United States. In most court cases
interpreting the term "point source", the
term has been interpreted broadly. For
example, the holding in Sierra Club v.
Abston Construction Co,, Inc., 620 F.2d
41 (5th Ctr. 1980) indicates that changing
the surface of land or establishing
grading patterns on land will result in a
point source where the runoff from the
site is ultimately discharged to waters of
the United States:
Simple erosion over the material surface.
resulting in the discharge of water and other
materials into navigable waters, does not
constitute a point source discharge, absent
some effort to change the surface, to direct
the water flow or otherwise impede its
progress * * * Gravity flow, resulting in at
discharge into a navigable body of water.
may be part of a point source discharge if the-
(discharger) it least initially collected or
channeled the water and other materials. A
point source of pollution may also be present
where (dischargers) design spoil piles from
discarded overburden such that tiering
periods of precipitation, erosion of spoil pile
walls results in discharges into a navigable
body of water by means of ditches, gullies
and similar conveyances, even if the
(dischargers) have done nothing beyond the
mere collection of rock and other materials
* * 'Nothing in the Act relieve*
(dischargers) from liability simply because
the operators did not actually construct those
conveyances, so long as they are reasonably
likely to be the means by which pollutants
are ultimately deposited into a navigable
body of water. Conveyances of pollution
formed either as a result of natural erosion or
by material means, and which constitute a
component of a * * * drainage system, may
fit the statutory definition and thereby
subject the operators to liability under the
Act." 620 F.2d at 45 (emphasis added).
Under this approach, point source
discharges of storm water result from
structures which increase the
imperviousness of the ground which acts
to collect runoff, with runoff being
conveyed along the resulting drainage or
grading patterns.
The entire thrust of today's regulation
is to control pollutants that enter
receiving water from storm water
conveyances. It is these conveyances
that will carry-the largest volume of
water and higher levels of pollutants.
The storm water permit application
process and permit conditions will
address circumstances and discharges
peculiar to individual facilities.
One industry commented that the
definition of waters of the State under
some State NPDES programs included
municipal storm sewer systems. The
commenter was concerned that certain
industrial facilities discharging through
municipal storm sewers in these states
would be required to obtain an NPDES
permit, despite EPA's proposal not to
require permits from such facilities
generally. In response, EPA notes that
section 510 of the CWA, approved
States are able to have stricter
requirements in their NPDES program. In
approved NPDES States, the definition
of waters of the State controls with
regard to what constitutes a discharge to
a water body. However, EPA believes
that this will have little impact, since, as
discussed below, all industrial
dischargers, including those discharging
through municipal separate storm sewer
systems, will be subject to general or
individual NPDES permits, regardless of
any additional State requirements.
One municipality commented tnat
neither the term "point source" nor
"discharge" should be used in
• conjunction with industrial releases info
urban storm water systems because that
gives the impression that such systems
are navigable waters. EPA disagrees
that any confusion, should result from
the use of these terms in this context. In
this rulemaking, EPA always addresses
such discharges as "discharges through
municipal separate storm sewer
systems" as opposed to "discharges to
waters of the United Stated"
Nonetheless, such industrial discharges
through municipal storm sewer systems
are subject to the requirements of
today's rule, as discussed elsewhere.
One commenter desired clarification
with regard to what constituted an
outfall, and if an outfall could be a pipe
that connected two storm water
conveyances. This rulemaking defines
outfall as a point of discharge into the
waters of the United States, and not a
conveyance which connects to Sections
of municipal separate storm sewer. In
response to another comment, this
rulemaking only addresses discharges to
waters of United States, consequently
discharges to ground waters are not
covered by this rulemaking (unless there
is a hydrological connection between
the ground water and a nearby surface
water body. See, e.g., Exxon Coro. v.
Train, 554 F.2d 1310,1312 n.i (5th Cir.
1977); McClellan Ecological Seepage
Situation V. Weinberger, 707 F.Supp.
1182,1195-96 (E.D. CaL 1988)).
In the WQA and other places, the
term "storm water" is presented as a
single word. Numerous comments were
received by EPA as to the appropriate
spelling. Many of these comments
recommended that two words for storm
water is appropriate. EPA has decided
to use an approach consistent with the
Government Printing Office's approved
form where storm water appears as two
words.
C. Responsibility for Storm Water
Discharges Associated With Industrial
Activity Through Municipal Separate
Storm Sewers
The December 7.1988. notice of
proposed rulemaking requested
comments on the appropriate permitting
scheme for storm water discharges
associated with industrial activity
through municipal separate storm
sewers. EPA proposed a permitting
scheme that would define the
requirement to obtain coverage under an
NPDES permit for a storm water
discharge associated with industrial
activity through a municipal separata
storm .sewer in terms of the
classification of the municipal separate
storm sewer. EPA proposed holding
municipal operators of large or medium
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47998 Federal Register / Vol. 55, No. 222 / Friday. November 16. 1990 / Rules and Regulations
municipal separate storm sewer systems
primarily responsible for applying for
and obtaining an NPDES permit
covering system discharges as well as
storm water discharges (including storm
water discharges associated with
industrial activity) through the system.
Under the proposed approach, operators
of storm water discharges associated
with industrial activity which discharge
through a large or medium municipal
separate storm sewer system would
generally not be required to obtain
permit coverage for their discharge
(unless designated as a significant
contributor of pollution pursuant to
section 402(p)(2)(E)) provided the
municipality was notified of: The name,
location and type of facility and a
certification that the discharge has been
tested (if feasible) for non-storm water
(including the-results of any testing). The
notification procedure also required the
operator of the storm water discharge
associated with industrial activity to
determine that: The discharge is
composed entirely of storm water; the
discharge does not contain hazardous
substances in excess of reporting
quantiUes;,and the facility is in
compliance with applicable provisions
of the NPDES permit issued to the
municipality for storm water.
In the proposal, EPA also requested
comments on whether a decision on
regulatory requirements for storm water
discharges associated with industrial
activity through other municipal
separate storm sewer systems (generally
those serving a population of less than
100,000) should be postponed until
completion of two studies of storm
water discharges required under section
402(p)(5)oftheCWA.
EPA favored these approaches
because they appeared to reduce the
potential administrative burden
associated with preparing and
processing the thousands of permit
applications associated with the
rulemaldng and provide EPA additional
flexibility in developing permitting
requirements for storm water discharges
associated with industrial activity. EPA
also expressed its belief, based upon an
analysis of ordinances controlling
construction site runoff in place in
certain cities, that municipalities
generally possessed legal authority
sufficient to control contributions of
industrial storm water pollutants to their
separate storm sewers to the degree
necessary to implement the proposed
rule. EPA commented that municipal
controls on industrial sources
Implemented to comply with an NPDES
permit issued to the municipality would
likely result in a level of storm water
pollution control very similar to that put
directly on the industrial source through
its own NPDES permit: This was to be
accomplished by requiring municipal
permitees,lo the maximum extent
practicable, to require industrial
facilities in the municipality to develop
and implement storm water controls
based on a consideration of the same or
similar factors as those used to make
BAT/BCT determinations. (See 40 CFR
125.3 (d)(2) and (d)(3)).
The great majority of comme'nters on
the December 7,1988, notice addressed
this aspect of the proposal. Based on
consideration of the comments received
on the notice, EPA has decided that it is
appropriate to revise the approach in its
proposed rule to require direct permit
coverage for all storm water discharges
associated with industrial activity,
including those that discharge through
municipal separate storm sewers. In
response to this decision, EPA has
continued to analyze the appropriate
manner to respond to the large number
of storm water discharges subject to this
rulemaking. The development of EPA's
policy regarding permitting these
discharges is discussed in more detail in
the section VI.D of today's preamble.
EPA notes that the status of
discharges associated with industrial
activity which pass through a municipal
separate storm sewer system under
section 402(p) raises difficult legal and
policy questions. EPA believes that
treating these discharges under permits
separate from those issued to the
municipality will most fully address
both the legal and policy concerns
raised in public comment.
Certain commenters supported EPA's
proposal. Some commenters claimed
that EPA lacked any authority to permit
industrial discharges which were not "
discharged immediately to waters of the
U.S. Other commenters agreed with
EPA's statements in the proposal that its
approach would result in a more
manageable administrative burden for
EPA and the NPDES states. However,
numerous comments also were received
which provided various arguments in
support of revising the proposed
approach. These comments addressed
several areas including the definition of
discharge under the CWA, the
requirements and associated statutory
time frames of section 402(p), as well as
the resource and enforcement
constraints of municipalities. EPA is
persuaded by these comments and has
modified its approach accordingly. The
key comments on this issue are
discussed below.
EPA disagrees with commenters who
suggested that EPA lacks authority to
permit separately industrial discharges
through municipal sewers. The CWA
prohibits the discharge of a pollutant
except pursuant to an NPDES permit.
Section S02(12)(A) of the CWA defines
the "discharge of a pollutant" as "any
addition of any pollutant to navigable
waters from any point source." * There
is no qualification in the statutory
language regarding the source of the
pollutants being discharged. Thus,
pollutants from a remote location which
are discharged through .a point source
conveyance controlled by a different
entity (such as a municipal storm sewer)
are nonetheless discharges for which a
permit is required.
EPA's regulatory definition of the term
"discharge" reflects this broad
construction. EPA defines the term to
include
additions of pollutants into waters of the
United States from: surface runoff which is
collected or channelled by man; discharges
through pipes, sewers, or other conveyances
owned by a State, municipality, or other
person which does not lead to a treatment
works; and discharges through pipes, sewers,
or other conveyances, leading into privately
owned treatment works.
40 CFR § 122.2 (1989) (emphasis added).
The pnly exception to this general rule is
the one contemplated by section 307{b)
of the CWA, i.e., the introduction of
pollutants into publicly-owned
treatment works. EPA treats these as
"indirect discharges," subject not to
NPDES requirements, but to
pretreatment standards under section
307(b).
In light of its construction of the term
discharge, EPA has consistently
maintained that a person who sends
pollutants from a remote location
through a point source into a water of
the U.S. may be held liable for the
unpermitted discharge of that pollutant.
Thus, EPA asserts the authority to
require a permit either from the operator
of the point source conveyance, (such as
a municipal storm sewer or a privately-
owned treatment works), or from any
person causing pollutants to be present
in that conveyance and discharged
through the point source, or both. See
Decision of the General Counsel (of
EPA) No. 43 ("In re Friendswood
Development Co.") (June 11,1976)
(operator of privately owned treatment
work and dischargers to it are both
subject to NPDES permit requirements).
See also, 40 CFR 122.3(g), 122.44(m)
1 Indeed, the DC Circuit has held, in the storm
water context, that EPA may not exempt any point
source discharges of pollutants from the
requirement to obtain an NPDES permit. NRDCv.
Costle, 569 F.Zd 1369,1377 (DC Cir. 1977).
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Federal Register / Vol. 55. No. 222 / Friday, November 16. 1990 / Rules and Regulation 47989
(NPDES permit writer has discretion to
permit contributors to a privately owned
treatment works as direct dischargers}.
In other words* where pollutants are
added by one person to a conveyance
owned/operated by another person, and
that conveyance discharges those
pollutants through a point source, EPA
may permit either person or both to
ensure that the discharge is properly
controlled. Pollutants from industrial
sites discharged through a storm sewer
to a point source are appropriately
treated in this fashion.
Furthermore, EPA believes that storm
water from an industrial plant which is
discharged through a municipal storm
sewer is a "discharge associated with
industrial activity." Today's rule, as in
the proposal, defines discharges
associated with industrial activity solely
in terms of the origin of the storm water
runoff. There is no distinction for how
the storm water reaches the waters of
the U.S. In other words, pollutants in
storm water from an industrial plant
which are discharged are "associated
with industrial activity," regardless of
whether the industrial facility operates
the conveyance discharging the storm
water (or whether the storm wateris
ultimately discharged through a
municipal storm sewer). Indeed, tlpre is
no distinction in the "industriar nature
of these two types of discharges. The
pollutants of concern in an industrial
storm water discharge are present when
the storm, water leaves the facility,
either through an industrial or municipal
storm water conveyance. EPA has no
data to suggest that the pollutanfein
industrial storm water entering a,
municipal storm sewer are any Afferent
than those in storm water discha/ged
immediately to a water of the U.S. Thus,
industrial storm water in a municipal
sewer is properly classified as
"associated with industrial activity-"
Although EPA proposed not to covet
these discharges by separate permit, 'the
Agency believes that ft is clearly not
precluded from doing so.
Many comments also supported 1he
proposed approach, noting that holding
municipalities primarily responsible for
obtaining a permit which covers
industrial storm water discharges
through municipal systems would
redape the administraavabHrden
associated with preparingahd
processing thousands of fsrmit
applications—permit appi'cations that
would be submitted Sf ea* industrial
discharger flwough a fatfe* o't medium
municipal separate stornssewer system
bad to apply iadrriduallylor as part of a
group application).
EPA appreciates these concerns. Yet
EPA also recognizes that there are also
significant problems with putting the
burden of controlling these sources on
the municipalities (except for designated
discharges) which must be balanced
with the concerns about the permit
application burden on industries. The
industrial permitting strategy discussed
in section VI.D below attempts to
achieve this balance.
EPA also does not believe that the
administrative burden will be nearly as
significant as originally thought, for
several reasons. Firsf, as discussed in
section VI.F.2 below and hi response to
significant public comment, EPA has
significantly narrowed the scope of the
definition of "associated with Industrial
activity" to focus in on those facilities
which are most commonly considered
"industrial" and thought to have the
potential for the highest levels of
pollutants in their storm water
discharges. EPA believes this is a more
appropriate way to ensure a
manageable scope for the industrial
storm water program in light of the
statutory language of section 402(p),
since it does not attempt to arbitrarily
distinguish industrial facilities on the
basis of the ownership of the
conveyance through which a facility
discharges its storm water. Second,
EPA's industrial permitting strategy
discussed in section VLD is designed
•around aggressive use of general permits
to cover the vast majority of industrial
sources. These general permits will
require industrial (facilities to develop
storm water control plans and practices
similar to those that would have been
required by the municipality. Yet,
general permits will eliminate the need
for thousands of individual or group
permit applications, greatly reducing the
burden on both industry EPA/States.
Finally, even under the proposal. EPA ,
believes that a large number of
industrial dischargers would have been
appropriate, for designation for
individual permitting under section
402(pM2}(E), with the attendant
individual application requirements, -
Today's approach will actually decrease
the overall burden on these facilities;
rather than filing an individual permit
application upon designation, these
facilities wifl generally be covered- by a
. general permit
By contrast, several commenters.
asserted that not only does EPA have
the authority fo ewer these discharges
by, separate permit, it is required to by
the language of section 402{p): As
discussed above, stonri water from an
' industrial plant which passes through a
municipal storm sewer to a point source
and is discharged to waters of the U.S. is
a "discharge associated with industrial
activity." Therefore, it is subject to the
appropriate requirements of section •
402(p). The operator of the discharge (or
the industrial facility where the storm
water originates) must apply for a
permit within three years of the 1987
amendments (i.e., Feb. 4,1990);2 EPA
must issue a permit by one year later
(Feb. 4,1991);. and the permit must
require compliance within three years of
permit issuance. That permit must
ensure that the discharge is in
compliance with all appropriate
provisions of sections 301 and 402.
Commenters asserted that EPA's
proposal would violate these two
requirements of the law. First, the
statute requires all industrial storm
water discharges to obtain a permit in
the first round of permitting (Le.t
February 4,1990). However, Congress
established a different framework to
address discharges from small municipal
separate storm sewer systems. Section
402(p) requires EPA to complete two
studies of storm water discharges, and
based on those studies, promulgate
additional regulations, including
requirements for state storm water
management programs by October 1,
1992, EPA is prohibited from issuing
permits for storm water discharges from
small municipal systems until October 1«
1992 unless the discharge is designated
under section 402(p)(2){E). Thus,
industrial storm water discharges from
these systems would not be covered by
a permit until later than contemplated
by statute. Second, permits for
municipal storm sewer systems require .
controls on storm water discharges "to
the maximum extent practicable," as
opposed to the BAT/BCT requirements
of section 301(bJ(2), Yet, all industrial
storm water discharges mast comply
with section 3Ol(b){2). Thus, covering
industrial storm water under a
municipal storm water permit ywll not
ensure the legally-required level of
control of industrial storm water
discharges.
In addition to comments on .the
requirements of section 402fp). EPA • ,
received several comments questioning
whether EPA's proposal to cover
industrial pollutants in municipal
separate storm sewers solely in the
permit issued,,!o the. municipality would
ensure adequate control of these
pollutants due to both inadequate
* R.shoulct be noted that EPA dirfnot promutsste
the required storm waterregsfetions by February.
198% M coate^atedf by section 402EpK*)fA). fa
discussed below., today'* rute geoer«tty requites
indttsteist storm Wafer dwcliarges to file • permit
appticatfon {it one year.
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4&QOO Federal Register / Vol. 55.- No, 222.J Friday. November 16. 3,990-. / Rules arid Regulations
resources and enforcement. Some
municipalities stated that the burdens of
this responsibility would be too great
with regard to source identification and
general administration of the program.
These commenters claimed they lacked
the necessary technical and regulatory
expertise to regulate such sources.
Commenters also noted that additional
resources to control these sources would
be difficult to obtain given the
restrictions on local taxation in many
states and the fact that EPA will not be
providing funding to local governments
to implement their storm water
programs.
Municipalities also expressed
concerns regarding enforcement of
EPA's proposed approach. Some
municipalities remarked that they did
not have appropriate legal authority to
address these discharges. Several
commenters also stated that requiring
municipalities to be responsible for
addressing storm water discharges
associated with industrial activity
through their municipal system would
result in unequal treatment of industries
nationwide because of different
municipal requirements and
enforcement procedures. Several
municipal entities expressed concern
with regard to their responsibility and
liability for pollutants discharged to
their municipal storm sewer system, and
further asserted that it was unfair to
require municipalities to bear the full
cost of controlling such pollutants. Other
municipalities suggested that overall
municipal storm water control would be
Impaired, since municipalities would
spend a disproportionate amount of
resources trying to control industrial
discharges through their sewers, rather
than addressing other storm water
problems. In a related vein, certain
commenters suggested that, where
industrial storm water was a significant
problem in a municipal sewer, EPA's
proposed approach would hamper
enforcement at the federal/state level,
since all enforcement measures could be
directed only at the municipality, rather
than at the most direct source of that
problem.
In response to all of these concerns,
EPA has decided to require storm water
discharges associated with industrial
activity which discharge through
municipal separate storm sewers to
obtain separate individual or general
NPDES permits. EPA believes that this
change will adequately address all of
the key concerns raised by commenters.
The Agency was particularly
influenced by concerns that many
municipalities lacked the authority
understate Jaw to address industrial
storm water practices. EPA had
assumed that since several cities
regulate construction site activities, that
they could regulate other industrial
operations in a similar manner. Several
commenters suggested otherwise. In
light of these concerns, EPA agrees with
' certain commenters that municipal
controls on industrial facilities, in lieu-of
federal control, might not comply with
section 402(p)(3)(A) for those facilities.3
This calls into question whether EPA's
proposed approach would have
reasonably implemented Congressional
intent to address industrial storm water
early and stringently in the permitting
process.
EPA also agrees with those
commenters who argued that municipal
controls on industrial storm water
sources were not directly analogous to
the pretreatment program under section
307(b), as EPA suggested in the
preamble to the proposal. The authority
of cities to control the type and volume
of industrial pollutants into a POTW is
generally unquestioned under the laws
of most states, since sewage and
industrial waste treatment is a service
provided by the municipality. Thus, EPA
has greater confidence that cities can
and will adopt effective pretreatment
programs. By contrast, many cities are
limited in the types of controls they can
impose on flows into storm sewers;
cities are more often limited to
regulations on quantity df industrial
flows to prevent flooding the system. So
too, the pretreatment program allows for
federal enforcement of local
pretreatment requirements. Enforcement
against direct dischargers (including
dischargers through municipal storm
sewers) is possible only when the
municipal requirements are contained in
an NPDES permit.
Although today's rule will require
industrial discharges through municipal
storm sewers to be covered by separate
permit, EPA still believes that municipal
operators of large and medium
municipal systems have an important
role in source identification and the
development of pollutant controls for
industries that discharge storm water
through municipal separate storm sewer
systems is appropriate. Under the CWA,
3 EPA notes that the legal issue raised'by
commenters regarding whether industrial storm
water would be coritrolled to BAT if covered by a
municipal permit at the MEP level is primarily a
theoretical issue. As explained above, the proposal
assumed that cities would establish controls on
Industry very similar to those established in an
NPDES permit using best professional judgment.
EPA's key concern, ratner. is whether cities can, in
fact, establish such controls. Thus, today's final-rule
should not appreciably change the requirements to
be imposed on industrial sources, only how those
requirements are'enforced.
targe and medium municipalities are
responsible for reducing pollutants in
discharges from' municipal separate
storm sewers to the maximum extent
practicable. Because storm water from
industrial facilities may be a major
contributor of pollutants to municipal
separate storm sewer systems,
municipalities are obligated to develop
controls for storm water discharges
associated with industrial activity
through their system in their storm
water management program. (See
section VI.H.7. of today's preamble.) The
CWA.provides that permits for
municipal separate storm sewers shall
require municipalities to reduce
pollutants to the maximum extent
practicable. Permits issued to
municipalities for discharges from
municipal separate storm sewers will
reflect terms, specified controls, and
programs that achieve that goal. As with
all NPDES permits, responsibility and
liability is determined by the
discharger's compliance with the terms
of the permit. A municipality's
responsibility for industrial storm water
discharged through their system is
governed by the terms of the permit
issued. If an industrial source discharges
storm waiter through a municipal
separate storm sewer in violation of
requirements incorporated into a permit
for the industrial facility's discharge,
that industrial operator of the discharge
may Be subject to an enforcement action
instituted by the Director of the NPDES
program.
Today's rule also requires operators of
storm water discharges associated with
Industrial activity through large and
medium municipal systems to provide
municipal entities of the name, location,
and type of facility that is discharging to
the municipal system. This information
will provide municipalities with a base
of information from which management
plans can be devised and implemented.
This requirement is in addition to any
requirements contained in the industrial
facility's permit. As in the proposal, the
notification process will assist cities in
development of their industrial control
programs.
EPA intends for the NPDES program,
through requirements in permits for
storm water discharges associated with
industrial activity,--to. work in concert
with municipalities in the industrial
component of their storm water
management program efforts. EPA
believes that permitting of municipal
storm sewer systems and the industrial
discharges through them will act in a .
complementary manner to fully control
the pollutants in those, sewer systems.
This will fully implement the intent of
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Federal Register / Vol. 55. No. 222 / Friday/November 16, 1990 / Rules and Regulations _gj001
Congress to control industrial as well as
large and medium municipal storm
water discharges as expeditiously and
effectively as possible. This approach
will also address the concerns of
municipalities that they lack sufficient
authority and resources to control all
industrial contributions to their storm
sewers and will be liable for discharges
outside of their control.
The permit application requirements
for large and medium municipal
separate storm sewer systems,
discussed in more detail later in today s
preamble, address the responsibilities of
the municipal operators of these systems
to identify and control pollutants m
storm water discharges associated with
industrial activity. Permit applications
for large and medium municipal
separate storm sewer systems are to
identify the location of facilities which
discharge storm water associated with
industrial activity to the municipal
system (see section VI.H.7. of the
preamble). In addition, municipal
applicants will provide a descri^on of
a proposed management program to
reduce, to the maximum extent
practicable, pollutants from storm water
discharges associated with industrial
activity which discharge to the,
municipal system (see section\\,H.7.c
of this preamble). EPA notes Breach
municipal program will be tstaed to
the conditions in that city. Inferences in
regional weather patterns, prology.
water quality standards, ani Storm
sewer systems themselves tiicVate that
storm water management practices will
vary to some degree in each ^
municipality. Accordingly, sw/ar
industrial storm water diseases may
be treated differently in te|> of the
requirements imposed by v
municipality, depending o«jhe
municipal-program. Nonetheless, any
individual or general pernj issued to
the industrial facility musjjomply with
section 402(p)(3)(A) of the|wA-
EPA intends to provide ytance and
guidance to municipalities^
permitting authorities forpeloping
storm water managementpgrams that
achieve permit tequireme. EPA
-intends to issue a guidanpocument
addressing municipal pei
. applications in the near to.
Controls developed in-nagement
plans for municipal systipermits may
take a variety of forms, Jre
necessary, municipal peitees can
pursue local remedies torelop
measures to reduce polUts or halt
storm water discharges k high levels
of pollutants through mtipal storm
sewer systems. Some Identities have
already implemented ounces or laws
that are designed to reduce the
discharge of pollutants to municipal
separate storm sewers, while other
municipalities have developed a variety
of techniques to control pollutants in
storm water. Alternatively, where
appropriate, municipal permittees may
develop end-of-pipe controls to control
pollutants in these discharges such as
regional wet detention ponds or
diverting flow to publicly owned
treatment works. Finally, municipal
applicants may bring individual storm
water discharges, which cannot be
adequately controlled by the municipal
permittees or general permit coverage,
to the attention of the permitting
authority. Then, at the Director's
discretion, appropriate additional
controls can be required in the permit
for the facility generating the targeted
storm water discharge.
One commenter suggested that
municipal operators of municipal
separate storm sewers should have
control over all storm water discharges
from a facility tha* discharges both
through the munic' >al system and to
waters of the Uniie'd States. In response,
under this regulatory and statutory
scheme, industries that discharge storm
water directly into the waters of the
United States, through municipal
separate storm sewer systems, or both
are required to obtain permit coverage
for their discharges. However,
municipalities are not precluded from
exercising control over such facilities
through their own municipal authorities.
It is important to note that EPA has
established effluent guideline limitations
for storm water discharges for nine
subcategories of industrial dischargers
(Cement Manufacturing (40 CFR part
411), Feedlots (40 CFR part 412),
Fertilizer Manufacturing (40 CFR part
418). Petroleum Refining (40 CFR part
419), Phosphate Manufacturing (40 CFR
part 422), Steam Electric (40 CFR part
423). Coal Mining (40 CFR part 434), Ore
Mining and Dressing (40 CFR part 440)
and Asphalt (40 CFR part 441)). Most of
the existing facilities in these
subcategories already have individual
permits for their storm water discharges.
Under today's rule, facilities with
existing NPDES permits for storm water
discharges through a municipal storm
sewer will be required to maintain these
permits and apply for an individual
permit, under § 122.26(c), when existing
permits expire. EPA received numerous
comments supporting this decision
because requiring facilities that have
existing permits to comply with today's
: requirements immediately would be
inefficient and not serve improved water
quality.
Sections 402(p) (1) and (2) of the CWA
provide that discharges from municipal
separate storm sewer systems serving a
population of less than 100,000 are not
required to obtain a permit prior to
October 1,1992, unless designated on a
case-by-case basis under section
402{p)(2)(E). However, as discussed
above, storm water discharges
associated with industrial activity
through such municipal systems are not
excluded. Thus, under today's rule, all
storm water discharges associated with
industrial activity that discharge through
municipal separate storm sewer systems
are required to obtain NPDES permit
coverage, including those which
discharge through systems serving
populations less than 100,000. EPA
believes requiring permits will address
the legal concerns raised by commenters
regarding these sources. In addition, it
will allow for control of these significant
sources of pollution while EPA
continues to study under section
402(p)(6) whether to require the
development of municipal storm water
management plans in these
municipalities. If these municipalities do
ultimately obtain NPDES permits for
their municipal separate storm sewer
systems, early permitting of the
industrial contributions may aid those
cities in their storm water management
efforts.
In the December 7,1988, proposal,
EPA recognized that storm water
discharges associated with industrial
activity from Federal facilities through
municipal separate storm sewer systems
may pose unique legal and
administrative situations. EPA received
numerous comments on this issue, with
most of these comments coming from
cities and counties. The comments
reflected a general concern with respect
to a municipality's ability to control
Federal storm water discharges through
municipal separate storm sewer
systems. Most municipalities stated that
they do not have the legal authority to
adequately enforce against problem
storm water discharges from Federal
facilities and that these facilities should
be required to obtain separate storm
water permits. Some commenters stated
that they have no Constitutional
authority to regulate Federal facilities or
establish regulation for such facilities.
Some commenters indicated that
Federal facilities could not be inspected,
monitored, or subjected to enforcement
for national security and other
jurisdictional reasons. Some
commenters argued that without clearly
stated legal authority for the
municipality, such dischargers should be
required to obtain permits. One
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48002 Federal Register / Vol. 55. No. 222 / Friday; November 16. 1990 / Rules and Regulations
municipality pointed out that Federal
facilities within city limits are exempted
from their Erosion and Sediment Control
Act and that permits for these facilities
should be required.
Under today's rule. Federal facilities
which discharge storm water associated
with industrial activity through
municipal separate storm sewer systems
will be required to obtain NPDES permit
coverage under Federal or State law.
EPA believes this will cure the legal
authority problems at the local level
raised by the commenters. EPA notes
that this requirement is consistent with
section 313{a) of the CWA.
D. Preliminary Permitting Strategy for
Storm Water Discharges Associated
With Industrial Activity
Many of the comments received on
the December 7,1988, proposal focused
on the difficulties that EPA Regions and
authorized NPDES States, with their
finite resources, will have in
implementing an effective permitting
program for the large number of storm
water discharges associated with
industrial activity. Many commenters
noted that problems with implementing
permit programs are caused not only by
ihe large number of industrial facilities
subject to the program, but by the
difficulties associated with identifying
appropriate technologies for controlling
storm water at various sites and the
differences in the nature and extent of
storm water discharges from different
types of industrial facilities.
EPA recognizes these concerns; and
based on a consideration of comments
from authorized NPDES States,
municipalities, industrial facilities and
environmental groups on the permitting
framework and permit application
requirements for storm water discharges
associated with industrial activity, EPA
It in the process of developing a
preliminary strategy for permitting storm
water discharges associated with
industrial activity. In developing this
strategy, EPA recognizes that the CWA
provides flexibility in the manner in
which NPDES permits are issued.4 EPA
* The court* fn NROCv. Train. 396 F-Supp. 13S3
fDJ),ai975) off-d. NROCv. CotUe. 5fl8 R2d 1368
(DC Clr. 1877). hive acknowledged the
administrative burden placed on the Agency by
requiring Individual permit* for a large number of
»torra water discharges. These courts have
recognized EPA'* discretion to use certain,
idmlnlitralive devices, such as area permits or
general permit* (o help manage it* workload. In
addition, the court* have recognized flexibility In
U» type of permit conditions that are established,
JfldiKHng requirement* for be*! management
practices.
intends to use this flexibility in
designing a workable and reasonable
permitting system. In accordance with
these considerations, EPA intends to
publish in the near future a discussion of
its preliminary permitting strategy for
implementing the NPDES storm water
program.
The preliminary strategy is intended
to establish a framework for developing
permitting priorities, and includes a four
tier set of priorities for issuing permits to
be implemented over time:
• Tier I—baseline permitting: One or
more general permits will be developed
to initially cover the majority of storm
water discharges associated with
industrial activity;
* Tier II—watershedpermitting:
Facilities within watersheds shown to
be adversely impacted by storm water
discharges associated with industrial
activity will be targeted for permitting.
• Tier III—industry specific
permitting: Specific industry categories
will be targeted for individual or
industry-specific permits; and
• Tier IV—facility specific
permitting: A variety of factors will be
used to target specific facilities for
individual permits.
Tier I—Baseline Permitting
EPA intends to issue general permits
that initially cover the majority of storm
water discharges associated with
industrial activity in States without
authorized NPDES programs. These
permits will also serve as models for
States with authorized NPDES
programs.
The consolidation of many sources
under one permit will greatly reducs the
otherwise overwhelming administrative
burden associated with permitting storm
water discharges associated with
industrial activity. This approach has a
number of additional advantages,
including:
• Requirements will be established
for discharges covered by the permit;
• Facilities whose discharges are
covered by the permit will have an
opportunity for substantial compliance
with the CWA;
• The public, including municipal
operators of municipal separate storm
sewers which may receive storm water
discharges associated with industrial
activity, will have access under section
308(b} of the CWA to monitoring data
and certain other information developed
by the permittee;
• EPA will have the opportunity to
begin to collect and review data'on
storm water discharges from priority-
industries, thereby supporting the
development of subsequent permitting
activities;
• Applicable requirements of
municipal storm water management
programs established in permits for
discharges from municipal separate
storm sewer systems will be enforceable
directly against non-complying
industrial facilities that generate the
discharges;
• The public will be given an
opportunity to comment on permitting
activities;
• The baseline permits will provide a
basis for bringing selected enforcement
actions by eliminating many issues
which might otherwise arise in an
enforcement proceeding; and
• Finally, the baseline permits will
provide a focus for public comment on
the development of subsequent phases
of the permitting strategy for storm
water discharges, including the
development of priorities for State storm
water management programs developed
under section 402(p)(6) of the CWA.
Initially, the coverage of the baseline
permits will be broad, but the coverage
is intended to shrink as other permits
are issued for storm water discharges
associated with industrial activities
pursuant to Tier II through IV activities.
2. Tierll—Watershed Permitting
Facilities within watersheds shown to
be adversely impacted by storm water
discharges associated with industrial
activity will be targeted for individual
and general permitting. This process can
be initiated by identifying receiving
waters (or segments of receiving waters)
where storm water discharges
associated with industrial activity have
been identified as a source of use
impairment or are suspected to be
contributing tc use impairment.
3. Tier III—Industry Specific Permitting
Specific indistry categories will be
targeted for iriividual or industry-
specific geneil permits. These permits
will allow permitting authorities to focus
attention and ^sources on industry
categories of irticular concern and/or
industry categies where tailored
requirements k appropriate. EPA will
work with theates to coordinate the
development model permits for
selected class^f industrial storm
water discharg EPA is also workino
to identify priof industrial categories
in the two repo to Congress required
under section 4p)(5) of the CWA. In
addition, groupplications that are
received can bced to develop model
permits for the |ropriate industries
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Federal Register / Vol. 55. No. 222 /Friday. November 16. 1990 / Rules and Regulations 4g003
4. Tier IV—Facility Specific Permitting
Individual permit's will be appropriate
for some storm water discharges in
addition to those identified under Tier II
and III activities. Individual permits
should be issued where warranted by:
the pollution potential of the discharge;
the need for individual control
mechanisms; and in cases where
reduced administrative burdens exist.
For example, individual NPDES permits
for facilities with process discharges
should be expanded during the normal
process of permit reissuance to cover
storm water discharges from the facility.
5. Relationship of Strategy to Permit
Applications Requirements
The preliminary long-term permitting
strategy described above identifies
several permit schemes that EPA
anticipates will be used in addressing
storm water discharges associated with
industrial activity. One issue that arises
with this strategy is determining the
appropriate information needed to
develop and issue permits for these
discharges. The NPDES regulatory
scheme provides three major options for
obtaining permit coverage for storm
water discharges associated with
industrial activity: (1) Individual permit
applications; (2) group applications; and
(3) case-by-case requirements developed
for general permit coverage.
a. Individual permit application
requirements. Today's notice
establishes requirements for individual
permit applications for storm water
discharges associated with industrial
activity. These application requirements
are applicable for all storm water
discharges associated with industrial
activity, except where the operator of
the discharge is participating in a group
application or a general permit is issued
to cover the discharge and the general
permit provides alternative means to
obtain permit coverage. Information in
individual applications is intended to be
used in developing the site-specific
conditions generally associated with
individual permits.
Individual permit applications are
expected to play an important role in'all
tiers of the Strategy, even where general
permits are used. Although general
permits may provide for notification
requirements that operate in lieu of the
requirement to submit individual permit
applications, the individual permit
applications may be needed under
several circumstances. Examples
include: where a general permit requires
the submission of a permit application
as the notice of intent to be covered by
the permit; where the owner or operator
authorized by a general permit requests
to be excluded from the coverage of the
general permit by applying for a permit
(see 40 CFR 122.28(b)(2)(iii) for EPA
issued general permits); and where the
Director requires an owner or operator
authorized by a general permit to apply
for an individual permit (see 40 CFR
122.28(b)(2)(ii) for EPA issued general
permits).
b. Group applications. Today's rule
also promulgates requirements for group
applications for storm water discharges
associated with industrial activity.
These applications provide participants
of groups with sufficiently similar storm
water discharges an alternative
mechanism for applying for permit
coverage.
The group application requirements
are primarily intended to provide
information for developing industry
specific general permits. (Group
applications can also be used to issue
individual permits in authorized NPDES
States without general permit authority
or where otherwise appropriate). As
such, group application requirements
correlate well with the Tier III
permitting activities identified in the
long-term permitting Strategy.
c. Case-by-case requirements. 40 CFR
122.21(a) excludes persons covered by
general permits from requirements to
submit individual permit applications.
Further, the general permit regulations
at 40 CFR 122.28 do hot address the
issue of how a potential permittee is to
apply to be covered under a general
permit. Rather, conditions for
notification of intent (NOI) to be
covered by the general permit are
established in the permits on a case-by-
case basis, and operate in lieu of permit
application requirements. Requirements
for submitting NOIs to be covered by a
general permit can range from full
applications (this would be Form 1 and
Form 2F for most discharges composed
entirely of storm water discharges
associated with industrial activity), to
no notice. EPA recommends that the
NOI requirements established in a
general permit for storm water
discharges associated with industrial
activity be commensurate with the
needs of the permit writer in
establishing the permit and the permit
program. The baseline general permit
described in Tier I is intended to support
the development of controls for storm
water discharges associated with
industrial activity that can be supported
by the limited resources of the
permitting Agency. In this regard, the
burdens of receiving and reviewing
NOI's from the large number of facilities
covered by the permit should also be
considered when developing NOI
requirements. In addition, NOI
requirements should be developed in
conjunction with permit conditions
establishing reporting requirements
during the term of the permit.
NOI requirements in general permits
can establish a mechanism which can
be used to establish a clear accounting
of the number of permittees covered by
the general permit, the nature of
operations at the facility generating the
discharge, their identity and location.
The NOI can be used as an initial
screening tool to determine discharges
where individual permits are
appropriate. Also, the NOI can be used
to ident'fy classes of discharges
appropriate for more specific general
permits, as well as provide information
needed to notify such dischargers of the
issuance of a more specific general
permit. In addition, the NOI can provide
for the identification of the permittee to
provide a basis for enforcement and
compliance monitoring strategies. EPA
will further address this issue in the
context of specific general permits it
plans to issue in the near future.
Today's rule requires that individual
permit applications for storm water
discharges associated with industrial
activity be submitted within one year
from the date of publication of this
notice. EPA is considering issuing
general permits for the majority of storm
water discharges associated with
industrial activity in those States and
territories that do not have authorized
State NPDES programs (MA, ME, NH,
FL, LA, TX, OK, NM, SD, AZ, AK, ID,
District of Columbia, the
Commonwealth of Puerto Rico, Guam,
American Samoa, the Commonwealth of
the Northern Mariana Islands, and the
Trust Territory of the Pacific Islands)
before that date to enable industrial
dischargers of storm water to ascertain
whether they are eligible for coverage
under a general permit (and subject to
any alternative notification
requirements established by the general
permit in lieu of the individual permit
application requirements of today's rule)
or whether they must submit an
individual permit application (or
participate in a group application)
before the regulatory deadlines for
submitting these applications passes.
Storm water application deadlines are
discussed in further detail below.
E. Storm Water Discharge Sampling
Storm water discharges are
intermittent by their nature, and
pollutant concentrations in storm water
discharges will be highly variable. Not
only will variability arise between given
events, but the flow and pollutant
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48004 Federal Register / Vol. 55. No. 222 / Friday. November 16. 1990 /. Rules and Regulations
concentrations of such discharges will
vary with time during an event. This
variability raises two technical
problems: how best to characterize the
discharge associated with a single storm
event; and how best to characterize the
variability between discharges of
different events that may be caused by
seasonal changes and changes in
material management practices, for
example.
Prior to today's rulemaking, 40 CFR
122,21fg){7) required that applicants for
NPDES permits submit quantitative data
based on one grab sample taken every
hour of the discharge for the first four
hours of discharge. EPA has modified
this requirement such that, instead of
collecting and analyzing four grab
samples individually, applicants for
permits addressing storm water
discharges associated with industrial
activity will provide data as indicators
of two sets of conditions: data collected
during the first 30 minutes of discharge
and flow-weighted average storm event
concentrations. Large and medium
municipalities will provide data on flow-
weighted average storm event
concentrations only.
Data describing pollutants in a grab
sample taken during the first few
minutes of the discharge can often be
used as a screen for non-storm water
discharges to separate storm sewers
because such pollutants may be flushed
out of the system during the initial
portion of the discharge. foraddition,
data from the first few minutes of a
discharge are useful because much of
the traditional structural technology
tised to control storm water discharges,
including detention and retention
devices, may only provide controls for
the first portion of the discharge, with
relatively little or no control for the
remainder of the discharge. Data from
the first portion of the discharge will
give an indication of the potential
usefulness of these techniques to reduce
pollutants in storm water discharges.
Also, such discharges may be primarily
responsible for pollutant sho'cks to the
ecosystem in receiving waters.
Studies such as NURP have shown
that flow-weighted average
concentrations of storm water
discharges are useful for estimating
pollutant loads.and for evaluating
certain concentration-based water
quality impacts. The use of flow-
weighted composite samples are also
consistent with comments raised by
various industry representatives during
previous Agency rulemakings that
continuous monitoring of discharges
from storm events Is neccssarj »o
adequately characterize such
discharge's.
'EPA requested comment on the
feasibility of the proposed modification
of sampling procedures at § 122.21{g)(7)
and the ability to characterize pollutants
in storm water discharges with an
average concentration from the first
portion of the discharge compared to
collecting and separately analyzing four
grab samples. It was proposed that an
event composite sample be collected, as
well as a grab sample collected during
the first 20 minutes of runoff. Comments
were solicited as to whether or not this
sampling method would provide better
definition of the storm load for runoff
characterization than would the
requirement to collect and separately
analyze four grab samples.
Many commenters questioned the
ability to obtain a 20 minute sample in
the absence of automatic samplers.
Some believed that pollutants measured
by such a sample can be accounted for
in the event composite sample. Others
argued that this is an unwarranted
sampling effort if municipal storm water
management plans are to be geared to
achieving annual pollutant load
reductions. Many commenters advised
that problems accessing sampling
stations and mobilizing sampling crews,
particularly after working hours, made
sampling during the first 20 minutes
impractical. These comments were
made particularly with respect to
municipalities, where the geographical
areas could encompass several hundred
square miles. Several alternatives were
suggested including: the collection of a
sample in the first hour, and
representative grab sampling in the next
three hours, one per hour; or perform
time proportioned sampling for up to
four hours.
Because of the logistical problems
associated with collecting samples
during the first few minutes of discharge
from municipal systems, EPA will only
require such sampling from industrial
facilities. Municipal systems will be
spread out over many square miles with
sampling locations potentially several
miles from public works departments or
other responsible government agencies.
Reaching such locations in order to
obtain samples during the first few
minutes of a storm event may prove
impossible. For essentially the same
reasons, the requirement has been
modified to encompass the first 30
minutes of the discharge, instead of 2O
minutes, for industrial discharges. The
rule also clarifies that the sample should
be taken during the first 30 minutes or as
soon thereafter as practicable. Where
appropriate, characterization of this
portion of the discharge from selected
outfalls or sampling points may be a
condition to permits issued to
municipalities. With regard to protocols
for the collection of sample aliquots for
flow-weighted composite samples,
§ 122.21(g)(7) provides that municipal
applicants may collect flow-weighted
composite samples using different
protocols with respect to the time
duration between the collection of
sample aliquots, subject to the approval
of the Director or Regional
Administrator. In other words, the
period may be extended from 15 minutes
to 20 or 25 minutes between sample
aliquots, or decreased from 15 to 10 or 5
minutes.
Other comments raised issues that
apply both to the impact of runoff
characterization and the first discharge
representation. These primarily
pertained to regions that have well
defined wet and dry seasons. Comments
questioned whether or not it is fair to
assume that the initial storm or two of a
wet season, which will have very high
pollutant concentrations, are actually
representative of the runoff
concentrations for the area.
In response, EPA believes that it is
important to represent the first part of
the discharge either separately or as a
part of the event composite samples.
This loading is made up primarily of the
mass of unattached fine participates and
readily soluble surface load that
accumulates between storms. This load
washes off of the basin's directly
connected paved surfaces when the
runoff velocities reach the level required
for entrainment of the particulate load
into the surface flow. It should be noted
that for very fine particulates and
solubles, this can occur very soon after
the storm begins and much sooner than
the peak flow. The first few minutes of
discharge represents a shock load to the
receiving water, in terms of
concentration of pollutants, because for
many constituents the highest
concentrations of the event will occur
during this initial period. Due to the
need to properly quantify this load, it is
not necessary to represent the first
discharge from the upper reaches of the
outfall's tributary area. In runoff
characterization basins, the assumption
is that the land use in the basin is
homogeneous, or nearly so, and that the
first discharge from the lower reaches
for all intents and purposes is
representative of the entire basin. If a
sample is taken during the first 30
minutes of the runoff, it will be
composed primarily of first discharge. It
the sample is taken at the outfall an
hour into the event, it may contain
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Federal Register / VoL 55. No. 222 / Friday. November 16. 1990 / Rules and Regulations
discharge from the remote portions of
the basin. It will not be representative of
the discharge because it will also
contain later washoff from the tower
reaches of the basin, resulting in a low
estimation of the first discharge load of
most constituents. Conversely, larger
suspended particuiates that normally
are not present in first discharge due to
inadequate velocities will appear in this
later sampling scenario because of the
influence of higher runoff rates in the
lower basin. Many commonly used
management practices are designed
based on their ability to treat a volume
of water defined by the first discharge
phenomenon. It is important to
characterize the first discharge load
because most management practices
effectively treat only, or primarily, this
load.
' It should be noted that first discharge
runoff is sometimes contaminated by
non-storm water related pollutants. In
many urban catchments, contaminants
that result from illicit connections and
illegal dumping may be stored in the
system until "flushed" during the initial
storm period. This does not negate the
need for information on the
characteristic- first discharge load, but
does indicate that the first phase field
screen results for illicit connections
should be used to help define those
outfalls where this problem might exist.
Several methods can be used to
develop an event average concentration.
Either automatic or manual sampling
techniques can be used that sample the
entire hydrpgraph, or at least the first
four hours of it, that will result in
several discrete samples and associated
flow rates that represent the various
flow regimes of an event These
procedures have the potential for
providing either an event average
concentration, an event mean
concentration, or discrete definition of
the washoff process. Automatic
sampling procedures are also available
that collect a single composite sample,
either on a time-proportioned or flow
proportioned basis.
When discrete samples are collected.
an event average composite sample can
be produced by the manual composite of
the discrete samples in equal volumes.
Laboratory analysis of time
proportioned composite samples will
directly yield the event average
concentration. Mathematical.averaging
of discrete sample analysis results will
yield an event average concentration.
When discrete samples are collected,
a Sow-weighted composite sample can
be produced based on ifee-diseharge
record. This is done by manually flow
proportioning the volumes of the
individual samples. Laboratory analysis
of flow weighted composite samples will
directly yield an event mea'n
concentration. Mathematical integration
of the change in concentrations and
mass flux of the discharge for discrete
sample data can produce an event mean
concentration. This procedure was used
during fee NURP program.
EPA wishes to emphasize that the
reason for sampling the type of storm
event identified in § 122.21{g}{7) is to
provide information that represents
local conditions that will be used to
create sound storm water management
plans. Based on the method to be used
to generate system-wide estimates of
pollutant loads, either method, discrete
or event average concentrations, may be
preferable to the other. If simulation
models will be used to generate loading
estimates, analysis of discrete samples
will be more valuable so that calibration
of water quality and hydrology may be
performed. On the other hand, simple
estimation methods based on event
average or event mean concentrations
may not justify the additional cost of
discrete sample analysis.
EPA believes that the first discharge
loading should be represented in the
permit application from industrial
facilities and, if appropriate, permitting
authorities may require the same in the
discharge characterization component of
permits issued to municipalities. The
first discharge load should also be
represented as part of an event
composite sample. This requirement will
assist industries in the development of
effective storm water management
plans.
EPA requested comments on the
appropriateness of the proposed rules
and of proposed amendments to the
rules regarding discharge sampling.
Comments were received which
addressed the appropriateness of
imposing uniform national guidelines.
Several commenters are concerned that
uniform national guidelines may not be
appropriate due to the geographic
variations in meteorology, topography,
and pollutant sources. While some
assert that a uniform guideline will
provide consistency of the sample
results, others prefer a program based
on regional or State guidelines-that more
specifically address their situation.
Several commenters, addressing
industrial permit application
requirements, preferred that the owner/
operator be allowed to set an individual
sampling protocol with approval of the
permit writer. Some commeriters were
concerned that one event may not be
sufficient to characterize runoff from a
basin as this may result in gross over-
estimation or underestimation of the
pollutant loads. Others indicated
confusion with regard to sampling
procedures, lab analysis procedures,
and the purpose of the program.
In response, today's regulations
establish certain minimum requirement »
Municipalities and industries may vary
from these requirements to the extent
that their implementation is at least as
stringent as outlined in today's rule.
EPA views today's rule as a means to
provide assurance as to the quality of
the data collected; and to this end, it is
important that the minimum level of
sampling required be well defined.
In response to EPA's proposal that the
first discharge be included in
"representative" storm sampling,
several commenters made their
concerns known about the possible
equipment necessary to meet this
requirement. Several commenters are
concerned that in order to get a first
discharge sample, automatic sampling
equipment will be required- Concerns
related to the need for this equipment
surfaced in the comments frequently:
most advised that the equipment is
expensive and that the demand on
sampling equipment will be too large for
suppliers and manufacturers to meet
Although equipment can be leased.
some commenters maintained that not
enough rental equipment is available to
make this a viable option in many
instances.
EPA is not promoting or requiring the
use of, automated equipment to satisfy
the sampling requirements. A
community may find that in the long run
it would be more convenient to have
such equipment since sampling is
required not only during preparation of
.the application, but also may be
required during the term of the permit to
assure that the program goals are being
met. Discharge measurement is
necessary in. order for the sample data
to have any meaning. If unattended
automatic sampling is to be performed,
then unattended flow measurement will
be required too.
EPA realizes that equipment
availability is a legitimate concern.
However, there is no practical
recommendation that can be made
relative to the availability.of equipment'
If automatic sampling equipment is not
available, manual sampling is an
appropriate alternative.
F. Storm Water Discharges Associated
With Industrial Activity
1. Permit Applicability
a. Storm water discharges associated
with industrial activity to waters of the
United States. Under today's rute
dischargers of storm water associated
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Federal Register / Vol. 55. No. 222 / Friday, November 16, 1990 / Rules and Regulations
with Industrial activity are required to
apply for an NPDES permit. Permits are
to be applied for in one of three ways
depending on the type of facility:
Through the individual permit
application process; through the group
application process; or through a notice
of Intent to be covered by general
permit.
Storm water discharges associated
with the industrial activities identified
under § 122.26(b){14) of today's rule may
avail themselves of general permits that
EPA intends to propose and promulgate
In the near future. The general permit
will be available to be promulgated in
each non-NPDES State, following State
certification, and as a model for use by
NPDES States with general permit
authority. It is envisioned that these
general permits will provide baseline
storm water management practices. For
certain categories of industries, specific
management practices will be
prescribed in addition to the baseline
management practices. As information
on specific types of industrial activities
Is developed, other, more industry-
speciflc general permits will be
developed.
Today's rule requires facilities widi
existing NPDES permits for storm water
discharges to apply for individual
permits under the individual permit
application requirements found at
122.28{c) 180 days before their current
permit expires. Facilities not eligible for
coverage under a general permit are
required to file an individual or group
permit application in accordance with
today's rule. The general permits to be
proposed and promulgated will indicate
what facilities are eligible for coverage
by the general permit.
b. Storm water discharges through
municipal storm sewers. As discussed
above, many operators of storm water
discharges associated with industrial
activity are not required to apply for an
Individual permit or participate in a
group application under § 122.26(c) of
today's rule if covered by a general
permit. Under the December 7,1988,
proposal, dischargers through large and
medium municipal separate storm sewer
systems were not required, as a general
rule, to apply for an Individual sennit or
as * group applicant. Today's rule is a
departure from that proposal. Today's
rule requires all dischargers through
municipal separate storm sewer systems
to apply for an Individual permit, apply
«s part of a group application, or seek
coverage under a promulgated general
permit for storm water discharges
associated with Industrial activity.
Municipal operators of large and
medium municipal separate storm sewer
systems are responsible for obtaining
system-wide or area permits for their
system's discharges.These permits are
expected to require that controls be
placed on storm water discharges
associated with industrial activity which
discharge through the municipal system.
It is anticipated that general or
individual permits covering industrial
storm water dischargers to these
municipal separate storm sewer systems
will require industries to comply with
the terms of the permit issued to the
municipality, as well other terms
specific to the permittee.
c. Storm water discharges through
non-municipal storm sewers. Under
today's rulemaking all operators of
storm water discharges associated with
industrial activity that discharge into a
privately or Federally owned storm
water conveyance (a storm water
conveyance that is not a municipal
separate storm sewer) will be required
to be covered by an NPDES permit (e.g.
an individual permit, general permit, or
as a co-permittee to a permit issued to
the operator of the portion of the system
that directly discharges to waters of the
United States). This is a departure from
the "either/or" approach that EPA
requested comments on in the December
7,1988, notice. The "either/or" approach
would have allowed either the system
discharges to be covered by a permit
issued to the owner/operator of the
system segment that discharged to
waters of the United States, or by an
individual permit issued to each
contributor to the non-municipal
conveyance.
EPA requested comments on the
advantages and disadvantages of
retaining the "either/or" approach for
non-municipal storm sewers. An
abundance of comment was received by
EPA on this particular part of the
program. A number of industrial
commenters and a smaller number of
municipalities favored retaining the
"either/or" approach as proposed, while
most municipal entities, one industry,
and One trade association favored
requiring permits for each discharger.
Two commenters stated that private
owners of conveyances may not have •
the legal authority to implement controls
on discharges through their System and
would not want to be held responsible
for such controls. EPA agrees that this, is
a potential problem. Therefore, today's
rule will require permit coverage for
each storm water discharge associated
with industrial activity;
One commenter supported the
concept of requiring all the facilities that
discharge to a non-municipal
conveyance to be co-permittees. EPA
agrees that this type of permitting
scheme, along with other permit
schemes such as area or general
permits, is appropriate for discharges
from non-municipal sewers, as long as
each storm water discharge through the
system is associated with industrial
activity and thus currently subject to
NPDES permitxoverage.
One State agency commented that in
the interest of uniformity, all industries
that discharge to non-municipal
conveyances should be required to
conform to the application requirements.
One industry stated that the rules must
provide a way for the last discharger
before the waters of the U.S. to require
permits for facilities discharging into the
upper portions of the system. EPA
agrees with these comments. Today's
rule provides that each discharger may
be covered under individual permits, as
co-permittees to a single permit, or by
general permit rather than holding the
last discharger to the waters of the
United States solely responsible.
In response to one commenter, the
term "non-municipal" has been clarified
to explain that the term refers to non-
publicly owned or Federally-owned
storm sewer systems.
Some commenters supporting the
approach as proposed, noted that
industrial storm water dischargers into
such systems can take advantage of the
group application process. EPA agrees
that in appropriate circumstances, such
as when industrial facilities discharging
storm water to the same system are
sufficiently similar, group applications
can be used for discharges to non-
municipal conveyances. However,,EPA
.believes that it would be inappropriate
to approve group applications for those
facilities whose only similarity is that
they discharge storm water into the
same private conveyance system. The
efficacy of the group application
procedures is predicated on the
similarity of operations and other
factors. The fact that several industries
discharge storm water to the same non-
municipal sewer system alone may not
make these discharges sufficiently
similar for group application approval.
One commenter suggested that EPA
has npt established any deadlines for
submission of permit applications for
storm water discharges associated with.
industrial activity through non-
municipal separate storm sewer
systems. EPA wants to clarify that
industrial storm water dischargers into
privately owned or Federally owned
storm water conveyances are required. .
to apply for permits in the same time
frame as individual or group applicants
(or as otherwise provided for in a .
general .permit).
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One commenter stated feat the
operator of the conveyance that accepts
discharges into its system has control
and police power over those that
discharge into tbe ^system by virtue of
the ability 1o restrict discharges into the
system. This commenter stated that
these facilities should be the entity
required to obtain the permit in all
cases. Assuming that this statement is
true in ail respects, the larger problem is
that one's theoretical ability to restrict
discharges is not necessarily tied to the
reality of enforcing those-restrictions or
even detecting problem discharges -when
they exist fa a similar vein one
commenter urged that a private operator
will not be in any worse a position than
a municipal entity, to determine who is
the source of pollution up-stream, EPA
agrees that from a hydrologicai
standpoint this may be true. However,
from the standpoint of detection
resources, police powers, enforcement
remedies, and other facets of municipal
power that may be brought to bear upon
problem dischargers, private systems
are in a far more precarious position
with respect to controlling discharges
from other private sources.
In light of die comments received.
EPA has decided that the either/or
approach as proposed is inappropriate.
Operators of non-municipal systems will
generally be in a poorer position to gain
knowledge of pollutants in storm water
discharges and to impose controls on
storm water discharges from other
facilities than will municipal system
Operators. In addition, best management
practices and other site-specific controls
are often most appropriate for reducing
pollutants in storm water discharges
associated with industrial activity and
can often only be effectively addressed
in a regulatory scheme that holds each
industrial facility operator directly
responsible. The either/ or approach as
proposed is not conducive to
establishing these types of practices
unless each discharger is discharging
under a permit Abo, some non-
municipal operators of storm water
conveyances, which receive storm water
" runoff from industrial facilities, may not
be generating storm water discharges
associated with industrial activity
themselves and, therefore, they would
otherwise.not need to obtain a permit
prior to October 1.1992, unless
specifically designated under section
402tp)(2jfEJ. Accordingly, EPA disagrees
with comments-that dischargers to non-
municipal conveyances should have the
flexibility to be covered by their permit
or covered by die permit issued to the
operator of the oatfali to waters to the
United States.
2. Scope of "Associated with Industrial
Activity"
The September 26, tS84| final
regulation divided' those discharges that
met the regulatory definition of storm
water point source into two groups. The
term Group I storm water discharges
was defined in an attempt to identify
those storm water discharges which had
a higher potential to contribute
significantly to environmental impacts.
Group I included those discharges that
contained storm water drained from an.
industrial plant or plant associated
areas. Other storm water discharges
(such as those from parking lots and
administrative buildings).tocated on
lands used for industrial activity were
classified as Group II discharges. The
regulations defined the term "plant
associated areas" by listing several
examples of areas that would be
associated with industrial activities.
However, die resulting definition led to
confusion among the regulated
community regarding the distinctions
between the Group I and Group II
classifications.
In amending the CWA in 1,937.
Congress did not explicitly adopt EPA's
regulatory classification of Group I and
Group II discharges. Rather, Congress
required EPA to address "storm water
discharges associated with industrial
activity" in the first round of storm
water permitting. In light of the adoption
of the term "associated with industrial
activity" in the CWA, and the ongoing
confusion surrounding the previous
regulatory definition, EPA has
eliminated the regulatory terms "Group I
storm water discharge" and "Group i!
. storm water discharge" pursuant to the
December 7,1937, Court remand, and has
not revived it. In addition, today's notice
promulgates a definition of the term
"storm water discharge associated with
industrial activity"at § 122^b)(14j and
clarified the scope of the term.
In describing the scope of the term
"associated with industrial activity",
several members of Congress explained
in the legislative history that the term
applied if a discharge was "directly
related to manufacturing, processing or
raw materials, storage areas at an
industrial plant" (VoL 132 Cong. Rec.
H1G932. HIQ936 (daily ed. October IS.
1986); Vol. 133 Cong. Rec. H176 (daily
ed. January 6,1987)}. Several
commenters. cited this language in
arguing for a more expansive or less
expansive definition of "associated with
industrial activity/' EPA believes that
the legislative history- supports the
decision to exclude from the definition
of industrial activity, at § 122^b)(14J
of today's rale, those facilities that are
generally-classified under the Office of
Management and Budget Standard
Industrial Classifications {SIC) as
wholesale, retail, service, of commercial
activities.
Two commenters recommended that.
all commercial enterprises should be
required to obtain a permit under this
regulation. Another commenter
recommended that all the facilities listed
in the December 7,1988, proposal.
including those listed in paragraphs {xi}
through (xvi| on page 49432 of the
December 7,1988, proposal, should be
included. EPA disagrees since .the intent
of Congress was to establish a phased
and tiered approach to storm water
permits, and that only those facilities
having discharges associated with
industrial activity should be included •
initially. The studies to be conducted
pursuant to section 402{p){5} will
examine sources of pollutants
associated with commercial, retail, and
other light business activity. If
appropriate, additional regulations
addressing these sources can be
developed under section 4Q2{pK6} of the .
CWA. As farther discussed below, EPA
believes that the facilities identified in
paragraphs (xi) through (xvi) are more
properly characterized as commercial or
retail facilities, rather than indutrial
facilities.
Today's rule clarifies the regulatory
definition of "associated with industrial
activity" by adopting the language used
in the legislative history and
supplementing it with a description of
various types of areas that are-directly
related to an industrial process {e.g.,
industrial plant yards, immediate access
roads'and rail lines, drainage ponds,
material handling sites, sites used for
the application or disposal of process
waters, sites used for the storage and
maintenance of material'handling
equipment and known sites that are
presently or have been used in the past
for residual treatment, storage or
disposal}. The agency has also
incorporated some of the suggestions.
offered by the public in comments.
Three commenters suggested'that the
permit application should focus only on
storm water with the potential to come
into contact with industrial-related
pollutant sources, rather than focusing
on how plant areas are utilized. These
commenters suggested that facilities
that are wholly enclosed or have their
operations entirely protected from the
elements should not be subject to permit
requirements under today's rale. EPA
agrees that these comments have merit
with regard to certain types of facilities.
Today's rule defines the term "storm
water discharge associated with
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48006 Federal Register / Vol. 55. No. 222 /. Friday, November 1ft 1J99Q / Rules and Regulations
Industrial activity" to include storm
water discharges from facilities
identified in today's rule at 40 CFR
122.21(b){l4){xi) (facilities classified as
Standard Industrial Classifications 20,
21,22, 23, 2434, 25, 285,267, 27,283, 285,
30,31 (except 311), 323,34 (except 3441),
35,36,37 (except 373), 38,39,4221-25)
only if:
areas where material handling equipment or
activities, raw material*, intermediate
product*, final products, waste materials,'by-.
products, or industrial machinery at these
facilities are exposed to storm water. Such
areas include: material handling sites; refuse
sites: sites used for the application or
disposal of process waste waters (as defined
at 40 CFR 401); sites used for the storage and
maintenance of material handling equipment;
sites used for residual treatment; storage or
disposal; shipping and receiving areas;
manufacturing buildings; material storage
areas for raw materials, and intermediate
and finished products; and areas where
industrial activity has taken place in the past
and significant materials remain and are
exposed to storm water.
The critical distinction between the
facilities identified at 40 CFR
122,26(b)(14)(xi) and the facilities
Identified at 40 CFR 122.26(b)(14)(i)-(x)
is that the former are not classified as
having "storm water discharges
associated with industrial activity"
unless certain materials or activities are
exposed to storm water. Storm water
discharges from the latter set of
facilities are considered to be
"associated with industrial activity"
regardless of the actual exposure of
these same materials or activities to
storm water.
EPA believes this distinction is
appropriate because, when considered
as a class, most of the activity at the
facilities in § 122.28(b)(14)(xi) is
undertaken in buildings; emissions from
stacks will be minimal or non-existent;
the use of unhoused manufacturing and
heavy industrial equipment will be
minimal; outside material storage,
disposal or handling generally will not
be a part of the manufacturing process;
and generating significant dust or
partlculates would be atypical. As such,
these industries are more akin or
comparable to businesses, such as retail,
commercial, or service industries, which
Congress did not contemplate regulating
before October 1,1992, and storm water
•discharges from these facilities are not
"associated with industrial activity."
Thus, these industries will be required
to obtain a permit under today's rule
only when the manufacturing processes
undertaken at such facilities would
result in storm water contact with
industrial materials associated with the
facility.
Industrial categories in
5 122.26(b)(14)(xi) all tend to engage in
production activities in the manner
described in the paragraph above.
Facilities under SIC 20 process foods
including meats, dairy food, fruit, and
flour. Facilities classified'under SIC 21
make cigarettes, cigars, chewing tobacco
and related products. Under SIC 22,
facilities produce yarn, etc., and/or dye
and finish fabrics. Facilities under SIC
23 are in the business of producing
clothing by cutting and sewing
purchased woven or knitted textile
products. Facilities under SIC 2434 and
25 are'establishments engaged in
furniture making. SIC 265 and 267
address facilities that manufacture
paper board products. Facilities under
SIC 27 perform services such as
bookbinding, plate making, and printing.
Facilities under SIC 283 manufacture
Pharmaceuticals and facilities under 285
manufacture paints, varnishes, lacquers,
enamels, and allied products. Under SIC
30 establishments manufacture products
from plastics and rubber. Those
facilities under SIC 31 (except 311), 323,
34 (except 3441), 35,36, and 37 (except
373) manufacture industrial and
cpmmercial metal products, machinery,
equipment, computers; electrical
equipment, and transportation
equipment, and glass products made of
purchased glass. Facilities under SIC 38
manufacture scientific and electrical
instruments and optical equipment.
Those under SIC 39 manufacture a
variety of items such as jewelry,
silverware, musical instruments, dolls,
toys, and athletic goods. SIC 4221-25 are
warehousing and storage activities.
In contrast, the facilities identified by
SIC 24 (except and 2434), 26 (except 265
and 267), 28 (except 283 and 285), 29,
311, 32 (except 323), 33, 3441, 373 when
taken as a group, are expected to have
one or many of the following activities,
processes occurring on-site: storing raw
materials, intermediate products, final
products, by-products, waste products,
or chemicals outside; smelting; refining;
producing significant emissions from
stacks or air exhaust systems; loading or
unloading chemical or hazardous
substances; the use of unhoused
manufacturing and heavy industrial
equipment; and generating significant
dust or particulates. Accordingly, these
are classes of facilities which can be
viewed as generating storm water
discharges associated with industrial
activity requiring a permit.
Establishments identified under SIC 24
(except 2434) are engaged in operating
sawmills, planing mills and other mills
engaged in producing lumber and wood
basic materials. SIC 28 facilities are
paper mills. Under SIC 28, facilities
' produce basic chemical products by
predominantly chemical processes. SIC
.29 describes facilities that are engaged
in. the petroleum industry. Under SIC
311, facilities are engaged in tanning..,
currying, and finishing hides and skins.
Such processes use .chemicals such as
sulfuric acid and sodium dichromafe,
arid detergents/and a variety of raw and
intermediate materials. SIC 32
manufacture glass, clay, stone and
concrete products form raw materials in
the form quarried and mined stone, clay,
and sand. SIC 33 identifies facilities that
smelt, refine ferrous arid nonferrous
metals from ore, pig or scrap, and
manufacturing related products. SIC
3441 identifies facilities manufacturing
fabricated structural metal. Facilities
under SIC 373 engage in ship building
and .repairing. The permit application
requirements for storm water discharges
from facilities in these categories are
unchanged from the proposal.
Today's rule clarifies that the
requirement to apply for a permit
applies to storm water discharges from
plant areas that are no longer used for
industrial activities (if significant
materials remain'and are exposed to
storm water) as well as areas that are
currently being used for industrial
activities. EPA would also clarify that
all discharges from these areas including
those that discharge through municipal
separate storm sewers are addressed by
this rulemaking.
One commenter questioned the use of
the word "or" instead of the word "and"
to describe storm water "which is
located at an industrial plant 'or*
directly related to manufacturing,
processing, or raw material storage
areas at an industrial plant." The
comment expressed the concern that
discharges from areas not located at an
industrial plant would be subject to
permitting by this language and ,
questioned whether this was EPA's
intent. EPA agrees that this is a
potential source of confusion and has
modified this language to reflect the
conjunctive instead of the alternative.
This change has been made to provide
consistency in the rule whereby some
areas at industrial plants, such as
administrative parking lots which do not
have storm water discharges
commingled with discharges from
manufacturing areas, are not included
under this rulemaking.
Two comrneaters wanted clarification
of the term "or process water," in the
definition of discharge associated with
industrial activity at § 122.26(b)(14). This
rulemaking replaces this term with the
term "process waste water" which is
defined at 40 CFR part 401.
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Federal Register / Vol. 55. No. 222 /Friday, November 16, 1990 /Rale^and Regulations 48009
One commenter took issue With the
decision to include drainage ponds,
refuse sites, sites for residual treatment,
storage, or disposal, as areas associated
With industrial activity, because it was
the- commenter's view that such areas
are unconnected with industrial activity.
EPA disagrees with this comment. If
refuse and other sites are used in
conjunction with manufacturing or the
by-products of manufacturing they are
clearly associated with industrial
activity. As noted above, Congress
intended to include discharges directly
related to manufacturing and processing
at industrial plants. EPA is convinced
that wastes, refuse, and residuals are
the direct result or consequence of
manufacturing and processing and,
when located or stored at the plant that
produces them, are directly related to
manufacturing and processing at that
plant. Storm water drainage from such
areas, especially those areas exposed to
the elements (e.g. rainfall) has a high
potential for containing pollutants from
materials that were used in the
manufacturing process at that facility.
One commenter supported the inclusion
of these areas since many toxins
degrade very slowly and the mere
passage of time will not eliminate their
effects. EPA agrees and finalizes this
part of the definition as proposed. One
commenter requested clarification of the
term "residual" as used in this context.
Residual can generally be defined to
include material that is remaining
subsequent to completion of an
industrial process. One commenter
noted that the current owner of a facility
may not know what areas or sites at a
facility were used in this manner in the
past. EPA has clarified the definition of
discharge associated with industrial
activity to include areas where
industrial activity has taken place in the
past and significant materials remain
and are exposed to storm water. The
Agency believes that the current owner
will be in a position to establish these
facts.
One commenter suggested including
material shipping and receiving areas,
waste storage and processing areas,
manufacturing buildings, storage areas
for raw materials, supplies,
intermediate's, and finished products,
and material handling facilities as
additional areas "associated with
industrial activity." EPA agrees that this
would add clarification to the definition,
and has incorporated these areas into
the definition at § 122.26(b)(14J.
One commenter stated that the
language "point source located at an
industrial plant" would include outfalls
located at the facility that are not owned
or operated by the facility, but which
are municipal storm sewers on
easements granted to a municipality for
the conveyance of storm water. EPA
agrees that if the industry does not
operate the point source then that
facility is not required to obtain a permit
for that discharge. A point source is a
conveyance that discharges pollutants
into the waters of the United States. If a
facility does not operate that point
source, then it would be the
responsibility of the municipality to
cover it under a permit issued to them.
However, if contaminated storm water
associated with industrial activity were
introduced into that conveyance by that
facility, the facility would be subject to
permit application requirements as is all
industrial storm water discharged
through municipal sewers.
EPA disagrees with several comments
that road drainage or railroad drainage
within a facility should not be covered
by the definition. Access roads and rail
lines (even those i it used for loading
and unloading) a--- areas that are likely
to accumulate extraneous material from
raw materials, intermediate products
and finished products that are used or
transported within, or to and from, the
facility. These areas will also be
repositories for pollutants such as oil
and grease from machinery or vehicles
using these areas. As such they are
related to the industrial activity at
facilities. However, the language
describing these areas of industrial
activity has been clarified to include
those access roads and rail lines that
are "used or traveled by carriers of raw
materials, manufactured products, waste
material, or by-products used or created
by the facility." For the same reasons
haul roads (roads dedicated to
transportation of industrial products at
facilities) and similar extensions are
required to be addressed in permit
applications. Two industries stated that
haul roads and similar extensions
should be covered by permits by rule.
EPA is not considering the use of a
permit by rule mechanism under this
regulation, however this issue will be
addressed in the section 402(p)(5)
reports to Congress and in general
permits to be proposed and promulgated
in the near future. EPA would note
however that facilities with similar
operations and storm Water concerns
that desire to limit administrative
burdens associated with permit
applications and obtaining permits may
want to avail themselves of the group
application and/or general permits.
In response to comments, EPA would
also like to clarify that it intends the
language "immediate access roads"
(including haul roads) to refer to roads
which are exclusively or primarily
dedicated for use by the industrial
facility. EPA does not expect facilities to
submit permit applications for
discharges from public access roaas
such as state, county, or federal roads
such as highways or BLM roads which
happen to be used by the facility; Also,
some access roads are used to transport
bulk samples of raw materials or
products (such as prospecting samples
from potential mines) in small-scale
prior to industrial production. EPA does
not intend to require permit applications
for access roads to operations which are
not yet industrial activities.
EPA does agree with comments made
by several industries that undeveloped
areas, or areas that do not encompass
those described above, should generally
not be addressed in the permit
application, or a storm water permit, as
long as the storm water discharge from
these areas is segregated from the storm
water discharge associated with the
industrial activity at the facility.
Numerous commenters stated that
maintenance facilities, if covered,
should not be included in the definition.
EPA disagrees with this comment.
Maintenance facilities will invariably
have points of access and egress, and
frequently will have outside areas
where parts are stored or disposed of.
Such areas are locations where oil,
grease, solvents and other materials
associated with maintenance activities
will accumulate. In response to one
commenter, such areas are only
regulated in the context of those
facilities enumerated in the definition at
§ 122.26(b)(14), and not similar areas of
retail or commercial facilities.
Another commenter requested that
"storage areas" be morfe clearly defined.
EPA disagrees that this term needs
further clarification in the context of this
section of the rule. However, in response
to one comment, tank farms at industrial
facilities are included. Tank farms are in
existence to store products and-
materials created or used by the facility.
Accordingly they are directly related to
manufacturing processes.
Regarding storage areas, one
commenter stated that the regulations
should emphasize that only facilities
that are not totally.enclosed are
required to submit permit applications.
EPA does not agree with this
interpretation since use of the generic
term storage area indicates no
exceptions for certain physical
characteristics. _Thus discharges from
enclosed storage areas are also covered
by today's rule (except as discussed
above). EPA also disagrees with one
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48010 Federal Register / Vol. 55. No. 222 / Friday. November 16. 1990 / Rules and Regulations
comment asserting that small outside
storage areas of finished products at
industrial facilities should be excluded
under the definition of associated with
Industrial activity. EPA believes that
such areas are areas associated with
industrial activity which Congress
Intended to be regulated under the
CWA. As noted above, the legislative
history refers to storage areas, without
reference to whether they are covered or
uncovered, or of a certain size.
The same language, in the legislative
history cited above, was careful to state
that the term "associated with industrial
activity" does not include storm water
"discharges associated with parking lots
and administrative and employee
buildings." To accommodate legislative
Intent, segregated storm water
discharges from these areas will not be
required to obtain a permit prior to
October 1,1992. Many commenters
stated that this was an appropriate
method in which to limit the scope of
"associated with industrial activity."
However, if a storm water discharge
from a parking lot at an industrial
facility is mixed with a storm water
discharge "associated with industrial
activity," the combined discharge is
subject to permit application
requirements for storm water discharges
associated with industrial activity. EPA
disagrees with some commenters who
urged that office buildings and
administrative parking lots should be
covered if they are located at the plant
site. EPA agrees with one commenter
that inclusion of storm water discharge
from these areas would be overstepping
Congressional intent unless such are
commingled with storm water
discharges from the plant site. Several
comraenters requested that language be
incorporated into the rule which
establishes that storm water discharges
from parking lots and administrative
areas not be included in the definition of
associated with industrial activity. EPA
agrees and has retained language used
in the proposal which addresses this
distinction.
Storm water discharges from parking
lots and administrative buildings along
with other discharges from industrial
lands that do not meet the regulatory
definition of "associated with industrial
activity" and that are segregated from
such discharges may be required to
obtain an NPDES permit prior to
October 1,1992, under certain
conditions. For example, large parking
facilities, due to their impervious nature
may generate large amounts of runoff
which may contain significant amounts
of oil and grease and heavy metals
which ray have adverse impacts on
receiving waters. The Administrator or
NPDES State has the authority under
section 402(p)(2)(E) of the amended
CWA to require a permit prior to
October 1,1992, by designating storm
water discharges such as those from
parking lots that are significant
contributors of pollutants or contribute
to a water quality standard violation.
EPA will address storm water
discharges from lands used for
industrial activity which do not meet the
regulatory definition of "associated with
industrial activity" in the section
402(p)(5) study to determine the
appropriate manner to regulate such
discharges.
, Several commenters requested
clarification that the definition does not
include sheet flow or discharged storm
water from upstream adjacent facilities
that enters the land or comingles with
discharge from a facility submitting a
permit application. EPA wishes to
clarify that operators of facilities are
generally responsible for its discharge in
its entirety regardless of the initial
source of discharge. However, where an
upstream source can be identified and
permitted, the liability of a downstream
facility for other storm water entering
that facility may be minimized. Facilities
in such circumstances may be required
to develop management practices or
other run-on/run-off controls, which
segregates or otherwise prevents outside
runoff from comingling with its storm
water discharge. Some commenters
expressed concern about other
pollutants which may arrive on a
facility's premises from rainfall. This
comment was made in reference to
runoff with a high or low pH. If an
applicant has reason to believe that
pollutants in its storm water discharge
are from such sources, then that needs
to be addressed in the permit
application and brought to the attention
of the permitting authority, which can
draft appropriate permit conditions to
reflect these circumstances.
EPA requested comments on
clarifying the types of facilities that
involve industrial activities and
generate storm water. EPA preferred
basing the clarification, in part, on the
use of Standard Industrial Classification
(SIC) codes, which have.been suggested
in comments to prior storm water
rulemakings because they are commonly
used and accepted and would provide
definitions of facilities involved in
industrial activity. Several commenters
supported the use by EPA of Standard
Industrial Classifications for the same
reasons identified by EPA as a generally
used and understood form of
classification. It was also noted that
using such a classification would allow
targeting for special notification and
educational mailings. Three
municipalities and three State
authorities-commented that SICs were
appropriate and endorsed their use as a
sound basis for determining which
industries are covered.
One municipality questioned how SIC
classifications will be assigned to
particular industries. SICs have
descriptions of the type of industrial
activity that is engaged in by facilities.
Industries will need to assess for
themselves whether they are covered by
a listed SIC and submit an application
accordingly. Another commenter
questioned if Federal facilities that do
not have an SIC code identification are
required to file a permit application.
Federal facilities will be required to
submit a permit application if they are
engaged in an industrial activity that is
described under § 122.26(b)(14). The
definition of industrial activity
incorporates language that requires
Federal facilities to submit permit
applications in such circumstances. The
language has been further clarified to
include State and municipal facilities.
EPA requested comments on the
scope of the definition (types of facilities
addressed) as well as the clarity of
regulation. EPA identified the following
types of facilities in the proposed
regulation as those facilities that would
be required to obtain permits for storm
water discharges associated with
industrial activity:
fij Facilities subject to storm water
effluent limitations guidelines, new
source performance standards, or toxic
pollutant effluent standards under 40
CFR subchapterN (except facilities
with toxic pollutant effluent standards
which are also identified under category
(xi) of this paragraph). One commenter
(a municipality) agreed with EPA that
these industries should be addressed in
this rulemaking. No other comments
were received on this category. EPA
agrees with this comment since these
facilities are those that Congress has
required EPA to examine and regulate
under the CWA with respect to process
water discharges. The industries in
these categories have generally been
identified by EPA as the most significant
dischargers of process wastewaters in
the country. As suoh, these facilities are
likely to have storm water discharges
associated with industrial activity for
which permit applications should be
required.
One commenter stated that because
oil and gas producers are subject to
effluent guidelines, EPA is disregarding
the intent of Congress to exclude
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Federal Register / Vol. 55, No. 222 /Friday, November 16, 1990 / Rules and Regulations 48011
facilities pursuant to' section 402(1). EPA
disagrees with this comment EPA is hot
prohibited from requiring permit
applications from industries with storm
water discharge associated With
industrial activity. EPA is prohibited
only from requiring a permit for oil and
gas exploration, production, processing,
or treatment operations, or transmission
facilities that discharge storm Water that
is not contaminated by contact with or
has not come into contact with, any
overburden, raw material, intermediate
products, finished products, byproducts
or waste products located on the site of
such operations such discharges. In
keeping with this requirement, EPA is
requiring permit applications from oil
and gas exploration, production,
processing, or treatment, operations, or
transmission facilities that fall into a
class of dischargers as described in
§ 122.26(c)(iii).
(ii) Facilities classified as Standard
Industrial Classifications 24 (except
2434), 26 (except 265 and 267), 28 (except
283 and 285), 29,311, 32 (except 323), 33,
3411,373 and (xi). Facilities classified
as Standard Industrial Classifications
20, 21, 22,23, 2434, 25,265, 267, 27, 283,
285, 30, 31 (except 311), 323, 34 (except
3441), 35,36, 37 (except 373), 38, 39,
422'l-25. One large municipality and one
industry agreed with EPA that facilities
covered by these SICs should be
covered by this rulemaking. Many
commenters, however, took exception to
including all or some of these industries.
However as noted elsewhere these
facilities are appropriate for permit
applications.
One commenter stated that within
certain SICs industries, such as textile
manufacturers use few chemicals and
that there is little chance of pollutants in
their storm water discharge. EPA agrees
that some industries in this category are
less likely than others to have storm
water discharges that pose significant
risks to receiving water quality.
However, there are many other
activities that are undertaken at these
facilities that may result in polluted
storm water. Further, the CWA is clear
in its mandate to require permit
applications for discharges associated
with'industrial activity. Excluding any of
the facilities under these categories,
except where the facility manufacturing
plant more closely resembles a
commercial or retail outlet would be
contrary to Congressional intent.
One State questioned the inclusion of
facilities identified in SIC codes 20-39
because of their temporary and transient
nature or ownership. Agency disagrees
that simply because a facility may
transfer ownership that storm water
quality/concerns should be-ignored. If
constant ownership was a condition
precedent to applying for and obtaining
a permit, few if any facilities would be
subject to this rulemaking.
One State estimated that the proposed
definition would lead to permits for
18,000 facilities in its State.
Consequently this commenter
recommended that the facilities under
SIC 20-^39 should be limited to those
facilities that have to report under
section 313 of title III, Superfund
Amendments and Reauthorization Act.
However, as noted by another
commenter, limiting permit requirements
to these facilities would be contrary to
Congressional intent. While use of
chemicals at a facility may be a source
of pollution in storm water discharges,
other every day activities at an
industrial site and associated pollutants
such as oil and grease, also contribute to
the discharge of pollutants that are to be
addressed by the CWA and these
regulations. While the number of permit
applications may number in the
thousands, EPA intends for group
applications and general permits to be
employed to reduce the administrative
burdens as greatly as possible.
Two commenters felt the permit
applications should be limited to all
entities under SIC 20-39. EPA disagrees
that all the industrial activities that need
to be addressed fall within these SICs.
Discharges from facilities under
paragraphs (i) through (xi) such as
POTWs, transportation facilities, and
hazardous waste facilities, are of an
industrial nature and clearly were
intended to be addressed before
October 1,1992.
Two conimenters stated that SIC 241
should be excluded in that logging is a
transitory operation which may occur on
a site for only 2-3 weeks ohce in a 20-30
year period. It was perceived that
delays in obtaining permits for such
operations could create problems in
harvest schedule and mill demand. This
commenter stated that runoff from such
operations should be controlled by
BMPs in effect for such industries and
that such a permit would not be
practical and would be cbst prohibitive.
EPA agrees with the commenter that
this provision needs clarification. The
existing regulations at 40 CFR 122.27
currently define the scope of the NPDES
program with regard to silvicultural
activities. 40 CFR 122.27(b)(l) defines
the term "silvicultural point source" to
mean any discrete conveyance related
to rock crushing, gravel washing, log
sorting, or log storage facilities which
are operated in connection with
silvicultural activities and from which
pollutants are discharged into, waters of
the United States. Section 122.27(b)(l)
also excludes certain sources. The
definition of discharge associated with
industrial activity does hot include
activities or facilities that are: currently
exempt from permitting under NPDES.
EPA does not intend to change the scope
of 40 CFR 122.27 in this rulemaking.
Accordingly, the definition of "storm
water discharge associated with
industrial activity" does not include
sources that may be'included under SIC
24, but which are excluded under 40
CFR 122.27. Further, EPA intends to
examine the scope of the NPDES
silvicultural regulations at 40 CFR 122.27
as it relates to storm water discharges in
the course of two studies of storm Water
discharges required under section
402(p)(5) of the CWA.
In response to one comment, EPA
intends that the list of applicable SICs
will define and identify what industrial
facilities are required to apply. Facilities
that warehouse finished products under
the same code at a different facility from
the site of manufacturing are not
required to file a permit application,
unless otherwise covered by this
rulemaking.
(Hi) Facilities classified as Standard
Industrial Classifications 10 through 14
(mineral industry) including .active or
inactive mining operations (except for
areas of coal mining operations no
longer meeting the definition of a
reclamation area under 40 CFR 434.11(1)
because, the performance bond issued to
the facility by the appropriate SMCRA
authority has been released, or except
for areas of non-coal mining operations
which have been released from
applicable State or Federal reclamation
requirements after December 17,1990
and oil and gas exploration, production,
processing, or treatment operations, or
transmission facilities that discharge
storm water contaminated by contact
with or that has come into contact with,
any overburden, raw material,
intermediate products, finished
products, byproducts or waste products
located on the site of such operations.
Several commenters urged that
Congress intended to require permits or
permit applications only for the
manufacturing sector of the oil and gas
industry (or those activities that
designated in SIC 20 through 39). EPA
disagrees with this argument. The fact
.that Congress used the language cited
above and not the appropriate the SIC
definition explicitly does not indicate
that a broader definition or less
exclusive definition was contemplated.
According to these comments, all storm
water discharges from oil and gas
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40012 Federal Register / Vol. 55, No. 222 / Friday, November 16, 1990 / Rules and Regulations
exploration and production facilities
would be exempt from regulation.
However, EPA is convinced that a
facility that is engaged in finding and
extracting crude oil and natural gas from
subsurface formations, separating the oil
and gas from formation water, and
preparing that crude oil for
transportation to a refinery for
manufacturing and processing into
refined products, will have discharges
directly relating to the processing or raw
material storage at an industrial plant
and are therefore discharges associated
with industrial activity.
For further clarification EPA is
intending to focus only on those
facilities that are in SIC 10-14.
Furthermore, in response to several
comments, this rulemaking will require
permit applications for storm water
discharges from currently inactive
petroleum related facilities within SIC
codes 10-14, if discharges from such
facilities meet the requirements as
described in section VLF.7.3. and
§ 122.26{c)(l)(iii). Inactive facilities will
have storm water associated with
Industrial activity irrespective of
whether the activity is ongoing.
Congress drew no distinction between
active and inactive facilities in the
statute or in the legislative history.
(ivjHazardous waste treatment,
storage, or disposal facilities that are
operating under interim status or a
permit under Subtitle C of the Resource,
Conservation and Recovery Act. One
commenter believed that all RCRA and
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA) facilities should be
specifically identified using SIC codes
for further clarification. EPA considers
this to be unnecessarily redundant,
since the RCRA/CERCLA identification
is sufficient.
Several industries asserted that storm
water discharge from landfills, dumps,
and land application sites, properly
closed or otherwise subject to corrective
or remedial actions under RCRA, should
not be included in the definition. One
commenter noted that the runoff from
these areas is like runoff from
undeveloped areas. One commenter also
concluded that landfills, dumps, and
land application sites should also be
excluded if they are properly maintained
under RCRA.
One commenter also rejected the idea
of requiring permits from all active and
inactive landfills and open dumps that
have received any industrial wastes,
and subtitle C facilities. This commenter
felt that these facilities were already
adequately covered under RCRA.
Two industry commenters felt that it
would be redundant to have hazardous
waste facilities regulated by RCRA and
. the NPDES storm water program. One
felt this was especially so if there are
current pretreatment standards.
The Agency disagrees that all
activities that may contribute to storm
water discharges at RCRA subtitle C
facilities are being fully controlled and
that requiring NPDES permits for storm
water discharges at RCRA subtitle C
facilities is redundant First, the vast
majority of permitted hazardous waste
management facilities are industrial
facilities involved in the manufacture or
processing of products for distribution in
commerce. Their hazardous waste
management activities are incidental to
the production-related activities. While
RCRA subtitle C regulations impose
controls in storm water runoff from
hazardous waste management units and
require cleanup of releases of hazardous
wastes, they generally do not control
non-systematic spills or process. These
releases, from the process itself or the
storage of raw materials or finished
products are a potential source of storm
water contamination. In addition, RCRA
subtitle C (except via corrective action
authority) does not address management
of "non hazardous" industrial wastes,
which nevertheless could also
potentially contaminate storm water
runoff.
Second, at commercial hazardous
waste management facilities, the RCRA
subtitle C permitting requirements and
management standards do not control
all releases of potentially toxic
materials. For example, some permitted
commercial treatment facilities may
store and use chemicals in the treatment
of RCRA hazardous wastes. Releases of
these treatment chemicals from storage
areas are a potential source of storm
water contamination.
Finally, many RCRA subtitle C
facilities have inactive Solid Waste
Management Units (SWMU's) on the
facility property. These SWMU's may
contain areas on the land surface that
are contaminated with hazardous
constituents. RCRA requires that
hazardous waste management facilities
must investigate these areas of potential
contamination, and then perform
corrective action to remediate any
SWMU's that are of concern. However,
the corrective action process at these
facilities will not be completed for a
number of years due to the complexity
of the cleanup decisions, and due to the
fact that many hazardous waste
management facilities do not yet have
RCRA permits. Until corrective action
has been completed at all such subtitle
C facilities, SWMU's are a potential
source of storm water contamination
that should be addressed under the
NPDES program. Finally, under section
1004(27) of RCRA, all point source
discharges, including those at RCRA
regulated facilities,, are to be regulated
by the NPDES program. Thus, there is no
concern of regulatory overlap, and to the
extent that the storm water regulations
are effectively implemented, it will help
address these units in a way that
alleviates the need for expensive
corrective action in the future.
(v) Landfills, land application sites,
and open dumps that receive or have
received industrial wastes and that are
subject to regulation under subtitle D of
RCRA. EPA received numerous
comments supporting the regulation of
municipal landfills which receive
industrial waste and are subject to
regulation under subtitle D of RCRA.
EPA agrees with these comments. These
industries have significant potential for
storm water discharges that can
adversely affect receiving water.
Two States argued that landfills
should be addressed under the non-
point source program. EPA disagrees
that the non-point source program is
sufficient for addressing these facilities.
Further, addressing a class of facilities
under the non-point source program
does not exempt storm water discharges
from these facilities from regulation
under NPDES. The CWA requires EPA
to promulgate regulations for controlling
point source discharges of storm water
from industrial facilities. Point sources
from landfills consisting of storm water
are such discharges requiring an NPDES
permit. Several commenters argued that
these discharges are adequately
addressed by RCRA and that regulating
them under this storm water rule would
be redundant. However, as discussed
above, RCRA expressly does not
regulate point source discharges subject
to NPDES permits. Given the nature of
these facilities and of the material
stored or disposed, EPA believes storm
water permits are necessary. Similarly
EPA rejects the comment that storm
water discharges from these facilities
are already adequately regulated by
State authority. Congress has mandated
that storm water discharges associated
with industrial activity have an NPDES
permit
One commenter wanted EPA to define
by size what landfills are covered. In
response, it is the intent of these
regulations to require permit
applications from all landfills that
receive industrial waste. Storm water
discharges from such facilities are
addressed because of the nature of the
material with which the storm water
comes in contact. The size of facility
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Federal Register / VoL 55. No. 222 / Friday, November 16, 1990 / Rules and Regulations 48P13
will not dictate what type of waste is
exposed to the elements.
One commenter requested that the
definition of industrial wastes be
cla-ified. For the purpose of this rule,
industrial waste consists of materials
delivered to the landfill for disposal and
whose origin is any of the facilities
described under § 122.26jb)[14) of this
regulation.
(yi) Facilities involved in the
recycling of materials, including metal
scrapyards, battery reclaimers, salvage
yafds, and automobile junkyards,
including but limited to those classified
as Standard Industrial Classification
5015 and 5093. One commenter
suggested that the recycling of materials
such as paper, glass, plastics, etc.,
should not be classified as an industrial
activity. EPA disagrees that such
facilities should be excluded on that
basis. These facilities may be
considered industrial, as are facilities
that manufacture such products absent
recycling.
Other facilities exhibit traits that
indicate industrial activity. In junkyards.
the condition of materials and junked
vehicles and the activities occurring on
the yard frequently result in significant
losses of fluids, which are sources of
toxic metals, oil and grease and
polychlorinated aromatic hydrocarbons.
Weathering of plated and non-plated
metal surfaces may result in
contributions of toxic metals to storm
water. Clearly such facilities cannot be
classified as commercial or retail.
One municipality felt that "significant
recycling" should be defined or clarified.
EPA agrees that the proposed language
is ambiguous. It has been clarified to
require permit applications from
facilities involved in the recycling of
materials, including metal scrapyards,
battery reclaimers, salvage yards, and
automobile junkyards, including but
limited to those classified as Standard
Industrial Classification 5015 and 5093.
These SIC codes describe facilities
engaged in dismantling, breaking up,
sorting, and wholesale distribution of
motor vehicles and parts and a variety
of other materials. The Agency believes
these SIC codes clarify the term
significant recycling.
One municipality stated that
regulation of these facilities under
NPDES would be duplicative if they are
publicly owned facilities. One State
expressed the view.that automobile
junkyards, salvage yards could not
legitimately be considered industrial
activity. As noted above; EPA disagrees
with these comments. Facilities that are
'actively engaged in.the storage and
recycling of products including,metala.
oil, rubber, and synthetics are in the.
business of storing and recycling
materials associated with or once used
in industrial activity. These activities
are not commercial or retail because
they are engaged in the dismantling of
motors for distribution in wholesale or
retail, and the assembling,, breaking up,
sorting, and wholesale distribution of
scrap and waste materials, which EPA
views as industrial activity. Further,
being a publicly owned facility does not
confer non-industrial status.
(viij Steam electric power generating
facilities, including coal handling sites,
and onsite and off site ancillary
transformer storage areas. Most of the
comments were against requiring permit
applications for onsite and offsite
ancillary transformer facilities. One
commenter stated that these
transformers did not leak in storage and
if there were leakage problems in
handling transformers, such leaks were
subject to Federal and State spill clean-
up procedures. The same commenter
suggested that if EPA required
applications from such facilities that it
exclude those that have regular
inspections, management practices in
place, or those that store 50
transformers at any one time.
EPA agrees that such facilities should
not be covered fay today's rule. As one
commenter noted, the Toxic Substances
Control Act (TSCA) addresses
pollutants associated with transformers
that may enter receiving water through
storm.water, discharges. EPA has
examined regulations under TSCA and
agrees that regulation of storm water
discharges from these facilities should
be the. subject of the studies being
performed under section 402(p)(5},
rather than regulations established by
today's rule. Under TSCA, transformers
are required to be stored in a manner
that prevents rain water from reaching
the stored PCBs or PCB items. 4O CFR
761.65{b}(I}fi}. EPA considers
transformer storage to be more akin to
retail or other light commercial
activities, where items are inventoried
in buildings for prolonged periods for
use or sate at some point in the future,
and where there is no ongoing
manufacturing or other industrial
activity within the structure.
One commenter stated that this
category of industries should be
loosened so that all steam electric
facilities are addressed—oil fired and
nuclear. EPA believes that the language
as proposed broadly defines the type of
industrial activity addressed without
specifying each mode of steam, electric
production. One commenter noted that
the EPA has. no authority under the
CWA[Train v. CPIB, Inc., 426 U.S. 1
(1976) to regulate the discharge of
source, special nuclear and by-product
materials which are regulated tinder the
Atomic Energy Act EPA agrees permit
applications may not address those
aspects of such facilities, however the
facility in its entirety may not
necessarily be exempt. A permit
application will be appropriate for
discharges from non-exempt categories.
(viii) Transportation facilities
classified as Standard Industrial
Classifications 40. 41, 42 (except 4221-
25), 43, 44, 45, and 5171 which hove
vehicle maintenance shops, material
handling facilities, equipment cleaning
operations or airport deicing operations.
Only those portions of the facility that
are either involved in vehicle
maintenance (including vehicle
rehabilitation, mechanical repairs,
painting, fueling, and lubrication),
equipment cleaning operations, or
which are identified in another
subcategory of facilities under EPA's
definition of storm water discharges
associated with industrial activity. One
commenter requested clarification of the
terms "vehicle maintenance." Vehicle
maintenance refers to the rehabilitation,
mechanical repairing, painting, fueling,
and lubricating of instrumentalities of
transportation located at the described
facilities. EPA is declining to write this
definition into the regulation however
since "vehicle maintenance" should not
cause confusion as a descriptive term.
One commenter wanted railroad tracks
where rail cars are set aside for minor
repairs excluded from regulation. In
response, if the activity involves any of
the above activities then a permit
application is required. Train yards
where repairs are undertaken are
associated with industrial activity. Train
yards generally have trains which, in
and of themselves, can be classified as
heavy industrial equipment Trains,
concentrated in train yards, are diesel
fueled, lubricated, and repaired in
volumes that connote industrial activity.
rather than retail or commercial activity.
One commenter argued that if
gasoline stations are not considered for
permitting, then all transportation
facilities should be exempt. EPA
disagrees with the thrust of this
comment Transportation facilities such
as. bus depots, train yards, taxi stations,
and airports are generally larger than
individual repair-shops, and generally
engage in heavier more expansive forms
of industrial activity. In keeping with
Congressional intent to cover all
industrial facilities, permit applications
from such facilities are appropriate. In
contrast EPA views gas stations as
retail commercial facilities not covered
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48014 Federal Register / Vol. 55, No. 222 / Friday, November 16, 1990 / Rules and Regulations
by this regulation. It should be noted
that SIC classifies gas stations as retail.
(ix) POTW lands used for land
application treatment technology/
sludge disposal, handling or processing
areas, and chemical handling and
storage areas. One commenter wanted
more clarification of the term POTW
lands. Another commenter requested
clarification of the terms sludge
disposal, sludge handling areas, and
sludge processing areas. One State
recommended that a broader term than
POTW should be used. EPA notes that
on May 2,1989. it promulgated NPDES
Sewage Sludge Permit Regulations; State
Sludge Management Program
Requirements at 40 CFR part 501. This
regulation identified those facilities that
are subject to section 405(f) of the CWA
as "treatment works treating domestic
sewage."
In response to the above comments,
EPA has decided to use this language to
define what facilities are required to
apply for a storm water permit. Under
this rulemaking "treatment works
treating domestic sewage," or any other
sewage sludge or wastewater treatment
device or system used in the storage
treatment, recycling, and reclamation of
municipal or domestic sewage, including
land dedicated to the disposal of sewage
sludge, with a design flow of 1.0 mgd or
more, or facilities required to have an
approved pretreatment program under
40 CFR part 403, will be required to
apply for a storm water permit.
However, permit applications will not
be required to address land where
sludge is beneficially reused such as
farm lands and home gardens or lands
used for sludge management that are not
physically located within the confines
(offsite facility) of the facility or where
sludge is beneficially reused in
compliance with section 405 of the
Clean Water Act (proposed rules were
published on February 6,1989, at 54 FR
5748). EPA believes that such activity is
not "industrial" since it is agricultural or
domestic application (non-industrial)
unconnected to the facility generating
the material.
EPA received many comments on the
necessity and appropriateness of
requiring permit applications for storm
water discharges from POTW lands. It
was anticipated by numerous
commenters that the above cited sludge
regulations would adequately address
storm water discharges from lands
where sludge is applied. However, the
sewage sludge regulations do not
directly address NPDES permit
requirements for storm water discharges
from POTW lands and related areas to
the extent required by today's
rulemaking; the regulations cover only
permits for use or disposal of sludge.
Also, the regulations proposed on
February 4,1989, cover primarily the
technical standards for the composition
of sewage sludge which is to be used or
disposed. They do not include detailed
permitting requirements for discharges
of storm water from lands where sludge
has been applied to the land. To that
extent, EPA is not persuaded by these
commenters that POTWs and POTW
lands should be excluded from these
storm water permit application
requirements.
Two commenters noted that some
States already regulate sludge use or
disposal activities substantially and that
EPA should refrain from further
regulation. EPA disagrees that this is a
basis for excluding facilities from
Federal requirements. Notwithstanding
regulations in existence under State law,
EPA is required by the CWA to
promulgate regulations for permit
application for storm water associated
with industrial activity. Under the
NPDES program, States are able to
promulgate more rigorous requirements.
However a minimum level of control is
required under Federal law. One
commenter also indicated that a State's
sludge land application sites must
follow a well defined plan to ensure
there is no sludge related runoff.
Notwithstanding that a State may
require storm water controls for sludge
land applications, as noted above, EPA
is required to promulgate regulations
requiring permit applications from
appropriate facilities. EPA views
facilities such as waste treatment plants
that engage in on-site sludge
composting, storage of chemicals such
as ferric chloride, alum, polymers, and
chlorine, and which may experience
spills and bubbleovers are suitable
candidates for storm water permits.
Facilities using such materials are not
characteristic of commercial or retail
activities. Use and storage of chemicals
and the production of material such as
sludge, with attendant heavy metals and
organics, is activity that is industrial in
nature. The size and scope of activities
at the facility will determine the extent
to which such activities are undertaken
and such materials used and produced
at the facility. Accordingly, EPA
believes limiting the facilities covered
under this category to those of 1.0 mgd
and those covered under the industrial
pretreatment program is appropriate.
To the extent that permit applicants
are already required to employ certain
management practices regarding storm
water, these may be incorporated into
permits and permit conditions issued by
Federal and State permitting authorities.
EPA has selected facilities identified
under 40 CFR part 501 (i.e. those with a
design flow of 1.0 mgd or more or those
required to have an approved
pretreatment program) since these
facilities will have largest contribution
of industrial process discharges. Sludge
from such facilities will contain higher
concentrations of heavy metal and
organic pollutants.
One commenter stated that sludge
disposal is a public activity that should
be addressed in a public facility's storm
water management program under a
municipal storm water management
program. EPA disagrees. Industrial
facilities, whether publicly owned or
not, are required to apply for and obtain
permits when they are designated as
industrial activity.
Another comment stated that a permit
should not be required for facilities that
collect all runoff on site and treat it at
the same POTW. EPA believes that a
permit application should be required
from such facilities. However, the above
practice can be incorporated as a permit
condition for such a facility. One
commenter stated storm water from
sludge and chemical handling areas can
be routed through the headworks of the
POTW. The agency agrees that this may
be an appropriate management practice
for POTWs as long as other NPDES
regulatory requirements are fulfilled
with regard to POTWs.
(x) Construction activities, including
clearing, grading and excavation
activities except operations that result
in the disturbance of less than five acre
total land area which are not part of a
larger common plan of development or
sale. EPA addresses whether these
facilities should be covered by today's
rule in section VI.F.8.
The December 7,1988, proposal also
requested comments on including the
following other categories of discharges
in the definition of industrial activities:
(xii) Automotive repair shops classified
as Standard Industrial Classification 751
or 753; (xiii) Gasoline service stations
classified as Standard Industrial Code
5541; (xiv) Lands other than POTW
lands (offsite facilities) used for sludge
management; (xv) Lumber and building
materials retail facilities classified as
Standard Industrial Classification 5211;
(xvi) Landfills, land application sites,
and open dumps that do not receive
industrial wastes and that are subject to
regulation under subtitle D of RCRA;
(xvii) Facilities classified as Standard
Industrial Classification 46 (pipelines,
except natural gas), and 492 (gas
production and distribution); (xviii)
Major electrical powerline corridors.
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EPA received numerous comments on
whether to require permit applications
•for these particular facilities. The
December 7.196& proposal reflected
EPA's intent not to require permits for
these facilities, bat rather to- address
these facilities in the two studies
required by CWA sections 402(p}{5} and
(6). After reviewing the comments on
this issue, EPA believes that these
facilities should be addressed under
these sections of the CWA. Most of
these facilities are classified as light
commercial and retail business
establishments!, agricultural, facilities
where residential or domestic waste is
received, or land use activities where
there is no manufacturing. It should be
noted that although EPA is not requiring
the facilities identified as categories (xii)
to (xviii), in the December 7.1988,
proposal to apply for a permit
application under this rulemakihg, such
facilities may be designated under
section 402(p){2){E) of the CWA.
Three commenters recommended that
EPA clarify that non-exempt
Department of Energy and Department
of Defense facilities should be covered
by the storm water regulation. The
regulation clearly states that Federal
Facilities that are engaged in industrial
activity (i.e. those activities in
§ 122.26{b)(14)(iHxi)) are required to
submit permit applications. Those
applying for permits covering Federal
facilities should consult the Standard
Industrial Classifications for further
clarification.
One commenter questioned how EPA
intended to regulate municipal facilities
engaged in industrial activities.
Municipal facilities that are engaged in
the type of industrial activity described
above and which discharge into waters
of the United States or municipal
separate storm sewer systems are
required to apply for permits. These
facilities will be covered in the same
manner as other industrial facilities. The
fact that they are municipally owned
does not in any way exclude them from
needing permit applications under this
rulemaking.
One commenter suggested exempting
those facilities that have total annual
sales less than five million dollars or
occupy less than five acres of land.
Another commenter thought that all
minor permittees should be exempt EPA
believes that the qualify of storm water
and the extent to which discharges
impact receiving water is nsot
necessarily related to* the size of the
facility or the dollar value of its
business. What is important in this
regard; is the extent- to which steps are
taken at facilities to curb the quantity
and type of material that may pollute
storm water discharges from1 these
facilities. Therefore EPA has not
excluded facilities from permitting on
such a basis. This same commenter
stated that the proposed rules should
not address facilities with multiple
functions {industrial and retail). EPA
disagrees. If a facility engages in activity
that is defined in paragraphs (i) through
(xi) above, it is required to apply for a
permit regardless of the fact that it also
has a retail element. Such facilities need
only submit a permit application for the
industrial portion of the facility (as long
as storm water from the non-industrial
portion is segregated, as discussed
above). This commenter also felt that
more studies needed to be undertaken to
determine the best way to regulate
industries. EPA agrees that storm water
problems need further study and for that
reason EPA has devoted substantial
manpower and resources to complete
comprehensive studies under section
402(pj(5), while also addressing
industrial sources that need immediate
attention under this rulemaking.
One commenter requested that EPA
give examples of storm water discharges
from each of the facilities that have
been designated for submitting permit
applications. Agency believes that this
is unnecessary and impractical since
every facility, regardless of the type of
industry, will have different terrain.
hydrology, weather patterns.
management practices and control
techniques. However. EPA intends to
issue guidance on filing permit
applications for storm water discharges
from industrial facilities which details
how an industry goes about filing an
industrial, permit and dealing with storm
water discharges.
Today's rulemaking for storm water
discharges associated with industrial
activity at § 122.26(c)(l)(i) includes
special conditions for storm water
discharges originating from mining
operations, oil or gas operations
(§ 122.26(c)(lKiii)), and from the
construction operations listed above
(§ i22.26[c)fl)(ii)). These requirements
are discussed in more detail in section
VI.F.7 and section VI.F.9 of today's
notice,
3. Individual Application Requirements
Today's rule establishes individual
and group permit application
requirements for storm water discharges
associated with industrial activity.
These requirements will address
facilities precluded from coverage under
the general permits to be proposed and
promulgated by EPA in the near future.
: EPA considers it necessary to obtain the
information required in individual
permit applications from certain
facilities because of the nature of their
industrial activity and because of
existing institutional mechanisms for
issuing and tracking NPDES permits.
Furthermore, some States will not have
general permitting authority ."Facilities
located in such States will be required
to submit individual applications or
participate in a group application. The
following response to comments
received on these requirements pertains
to these facilities.
Under the September 26.1984,
regulation operators of Group ! storm
water discharges were required to
submit NPDES Form 1 and Form 2C
permit applications. In response to post-
regulation comments received on that
rule, EPA proposed new permit
application requirements (March 7.1985,
(50 FR 9382) and August 12< 1985. (50 FP
32548)) which would have decreased the
analytical sampling requirements of the
Form 2C and provided procedures for
group applications. Passage of the WQA
in 1987 gave the EPA additional time to
consider the appropriate permit
application requirements for storm
water discharges. On December 7,1988,
application requirements were proposed
and numerous comments were received.
Based uporc these comments,
modifications and refinements have
been made to the industrial storm water
permit application.
Some commenters expressed the view
that the permit application requirements
are too burdensome, require too much
paperwork, are of dubious utility, and
focus too greatly on the collection of
quantitative data. EPA disagrees. In
comparison to prior approaches for
permitting: storm water discharges and
other existing permitting programs. EPA
has streamlined .the permit application)
process, limited the quantitative data
requirements, and required narrative
information that will be usefd to
determine permit conditions that relate
to the quality of storm waterdischarge.
To the extent that EPA needs non-
' quantitative information to develop
appropriate permit conditions, EPA
disagrees with the view of some
commenters that the information
required is excessix'e. In response to
comments on earlier rulemakings and a
comment received on the December 7.
1988, proposal (stressing that the
emphasis should be on site
management, rather than monitoring,
sampling, and reporting) EPA has
shifted" the emphasis of the permit
application requirements for storm
water discharges associated with
industrial activity' front the existing: •
requirementS'fot coHe'ctfofro? •
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48016 Federal Register f Vol. 5&. No. 223 /Friday, November 16, 1990 / Rules and Regulhiidns
quantitative data (sampling data) in
Form 2C towards collection of less
quantitative data supplemented by
additional information needed for
evaluation of the nature of the storm
water discharges.
The permit application requirements
proposed for storm water discharges
reduce the amount of quantitative data
required in the permit application and
exempt discharges which contain
entirely storm water (i.e. contain no
other discharge that, without the storm
water component, would require an
NPDES permit), from certain reporting
requirements of Form 2C. The proposed
modifications also would exempt
applicants for discharges which contain
entirely storm water from several non-
quantitative information collection
provisions currently required in the
Form 2C. The proposed modifications
would rely more on descriptive
information for assessing impacts of the
storm water discharge. One commenter
proposed that information that the
applicant has submitted for other
permits be incorporated by reference
into the storm water permit application.
EPA disagrees that incorporation by
reference is appropriate. The permitting
authority will need to have this
information readily available for
evaluating permit application and permit
conditions. Furthermore, FJPA feels that
the applicant is in the best position to
provide the information and verify its
accuracy. However, if the applicant has
such information and it accurately
reflects current circumstances, then the
applicant can rely on the information for
meeting the information requirements of
the application. Another commenter
suggested that EPA should only require
the information in § 122.26(c)(l) (A) and
(B) (i.e., the requirement for a
topographic map indicating drainage
areas and estimate of impervious areas
and material management practices). As
explained in greater detail below, EPA
Is convinced that some quantitative data
and the other narrative requirements are
necessary for developing appropriate ,
permit conditions.
Form 2F addressing permit-
applications for storm water discharges
associated with industrial activity is
included in today's final rule. A
complete permit application for
discharges composed entirely of storm
water, will be comprised of Form 2F and
Form 1. Operators of discharges which
are composed of both storm water and
non-storm water will submit, where
required, a Form 1, an entire Form 2C (or
Form 2D) and Form 2F when applying. In
this case, the applicant will provide
quantitative data describing the
discharge during.a storm event-in Form
2F and quantitative data describing the
discharge during non-storm events in
Form 2C. Non-quantitative information
reported in the Form 2C will not have to
be reported again in the Form 2F.
Under today's rule, Form 2F for storm
water discharges associated with
industrial activity would not require the
submittal of all of the quantitative
information required in Form 2C, but
would require that quantitative data be
submitted for:
• Any pollutant limited in an effluent
guideline for an industrial applicant's
subcategory;
• Any pollutant listed in the facility's
NPDES permit for its process
wastewaten
• Oil and grease, TSS, COD, pH,
BODS, total phosphorus, total Kjeldaht
nitrogen; nitrate plus nitrite nitrogen;
and
• Any information on the discharge
required under 40 CFR 122.2l(g)(7) (iii)
and (iv).
In order to characterize the
discharge(s) sampled, applicants need to
submit information regarding the storm
event(s) that generated the sampled
discharge, including the date(s) the
sample was taken, flow measurements
or estimates of the duration of the storm
event(s) sampled, rainfall measurements
or estimates from the storm event(s)
which generated the sampled runoff,
and the duration between the storm
event sampled and the end of the
previous storm event. Information
regarding the storm event(s) sampled is
necessary to evaluate whether the
discharge(s) sampled was generally
representative of other discharges
expected to occur during storm events
and to characterize the amount and
nature of runoff discharges from the site.
One commenter stated that the
quantitative information should be
limited to those pollutants that are
expected to be known to the applicant.
EPA believes this would be
inappropriate since there will be no way
of determining initially whether these
pollutants are present despite the
expectations of the applicant. Once the
data is provided, .permits can be drafted
which address specific pollutants. This
rulemaking requires that the applicant
test for oil and grease, COD, pH, BODS,
TSS, total Kjeldahl nitrogen, nitrate plus
nitrite nitrogen and total phosphorus.
Oil and grease and TSS are a common
component of storm water and can have
serious impacts on receiving waters.
Oxygen demand (COD and BODS) will
help the permitting authority evaluate
the oxygen depletion potential of the
discharge. BODS is the most commonly
used indicator of potential oxygen
demand.'COD is considered a more
inclusive indicator of oxygen demand,
especially where metals interfere with
the BODS test. The pH will provide the
permitting authority with important
information on the potential availability
of metals to the receiving flora, fauna
and sediment. Total Kjeldahl nitrogen,
nitrate plus nitrite nitrogen and total
phosphorus are measures of nutrients
which can impact water quality.
Because this data is useful in developing
appropriate permit conditions, EPA
disagrees with the argument made by
one commenter that quantitative data
requirements should be a permit
condition and not part of the application
process.
In the proposed rule, the Agency used
total nitrogen as a parameter. This has
been changed to total Kjeldahl nitrogen
and nitrate plus nitrite nitrogen for
clarity.
Today's rule defines sampling at
industrial sites in terms of sampling for
those parameters that have effluent
limits in existing NPDES permits, as well
as for any other conventional or
nonconventional parameter that might
be expected to be found at the outfall.
Comments on the appropriateness of the
defined parameters were solicited by
the proposal. Numerous commenters
maintained that either the parameter list
be made industry specific, or that
pollutant categories not detected in the
initial screen be exempted from further
testing. Some suggested that only
conventional pollutants, inorganics, and
metals be sampled unless reason for
others is found.
In terms of specific water quality
parameters, it was recommended that
surfactants not be tested for unless foam
is visible. One commenter also
suggested that fecal coliform sampling is
inappropriate for industrial permits
applications. One commenter favored
testing for TOC instead of VOC. In
response, VOC has been eliminated
from the list of parameters because it
will not yield specific usable data. VOC
is not specifically required in any
sampling in today's rule, except where
priority pollutant scans are required.
Some recommended that procedures
be modified to facilitate quicker, less
expensive lab analyses. Concern was
also raised that industry might be
required to collect its own rainfall data
if there is no nearby observation station.
Some commenters stated that EPA
should not allow automatic sampling for
either biological or oil and grease
sampling due to the potential for
contamination in sampling equipment.
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Federal Register / Vol, 55, No. 222 / Friday, November 16, 1990 / Rules and Regulations 48017
In response, EPA believes that the
sampling requirements for industry in
today's rule are reasonable and not
burdensome. These requirements
address parameters that have effluent
limits in existing NPDES permits, as well
as for any other conventional or
nonconventional parameter that might
be expected to be found at the
applicants outfall. Under this procedure
both industry-specific and site-specific
contaminants are already identified in
the existing permit. Whether all these
parameters need to be made a part of
any discharge characterization plans,
under the terms of the permit, will be a
case-by-case determination for the
permitting authority. EPA maintains that
the test for surfactants (if in effluent
guidelines or in the facility's NPDES
permit for process water) is justifiable
even when a foam is not obvious at the
" outfall. The presence of detergents in
storm water may be indicated by foam,
but the absence of foam does not
indicate that detergents are not present.
EPA requested comments on fecal
coliform as a parameter. Fecal coliform
was included on the list as an indicator
of the presence of sanitary sewage. In
large concentrations, fecal coliform may
be an effective indicator of sanitary
sewage as opposed to other animal
wastes. EPA believes that sanitary cross
connections will also be found at
industrial facilities. Furthermore, the
test for fecal coliform is an inexpensive
test and its inclusion or exclusion .
should make little impact financially on
the individual application costs.
Sampling for volatile organic carbon
shall be accomplished when required, as
it is an appropriate indicator of
industrial solvents and organic wastes.
In response to comments, EPA
acknowledges that there are certain
pollutants that are capable of leaving
residues in automatic sampling devices
that will potentially contaminate
subsequent samples. In these cases,
such as for biological monitoring, if such
a problem is perceived to exist and it is
expected that the contaminant will
render the subsequent samples
unusable, manual grab samples may be
needed. This would include grab
samples for pH, temperature, cyanide,
total phenols, residual chlorine, oil and
grease, fecal coliform, and fecal
streptococcus. EPA is not disallowing ,
the use of automatic sampling because
of possible contamination, as this type
of sampling may be the best method for
obtaining the necessary samples from a
selected storm events.
In addition to the conventional
pollutants listed above, this final rule
requires applicants, when appropriate.
to sample other pollutants based on a
consideration of site-specific factors.
These parameters account for pollutants
associated with materials used for
production and maintenance, finished
products, waste products and non-
process materials such as fertilizers and
pesticides that may be present at a
facility. Applicants must sample for any
pollutant limited in an effluent guideline
applicable, to the facility or limited in the
facility's NPDES permit. These
pollutants will.generally be associated
with the facility's manufacturing process
or wastes. Other process and non-
process related pollutants, will be
addressed by complying with the
requirements of 40 CFR 122.21(g)(7) (in)
and (iv).
Section 122.21(g)(7)(iii) requires
applicants to indicate whether they
.know or have reason to believe that any
pollutant listed in Table IV
(conventional and ncn'conventional
pollutants) of append x D to 40 CFR part
122 is discharged. It such a pollutant is
either directly limited or indirectly
limited by the terms of the applicant's
existing NPDES permit through
limitations on an indicator parameter,
the applicant must report quantitative
data. For pollutants that are not
contained in an effluent limitations
guideline, the applicant must either
report quantitative' data or describe the
reasons the pollutant is expected to be
discharged. With regard to pollutants
listed in Table II (organic pollutants) or
Table III (metals, cyanide and total
phenol) of appendix D, the applicant
must indicate whether they know or
have reason to believe such pollutants
are discharged from each outfall and, if
they are discharged in amounts greater
than 10 parts per billion (ppb), the
applicant must report quantitative data.
An applicant qualifying as a small
business under 40 CFR 122.21(g)(8), (e.g..
coal mines with a probable total annual
production of less than 100,000 tons per
year or, for all other applicants, gross
total annual sales averaging less than
$100,000 per year (in second quarter
1980 dollars)), is not required to analyze
for pollutants listed in Table II of
appendix D (the organic toxic
pollutants).
Section 122.21(g)(7)(iv) requires
applicants to indicate whether they
know or have reason to believe that any
pollutant in Table V of appendix D to 40
CFR part 122 (certain hazardous
substances) is discharged. For every
pollutant expected to be discharged, the
applicant must briefly describe the
reasons the pollutant is expected to be
discharged and report any existing
quantitative data it has for the pollutant.
When collecting data..for permit
applications, applicants, may make use
of 40 CFR 122.2l(g}(7), which provides
that "when an applicant has two or
more outfalls with substantially
identical effluents, the Director may
allow the applicant to test only one
outfall and report that the quantitative
data also applies to the substantially .
identical outfalls." Where the facility
has availed itself of this .provision, an
explanation of why the untested outfalls
are "substantially identical" to tested
outfalls must be provided in the
application. Where the amount .of flow
associated with the outfalls with
substantially identical effluent differs,
measurements or estimates of the total
flow of each of the outfalls must be
provided. Several commenters stated
that the time and expense associated
with sampling and analysis would be
saved if the applicant was able to pick
substantially identical outfalls without
prior approval of the permitting
authority. EPA disagrees that this would
be an appropriate devolution of
authority to the permit applicant. The
permitting authority needs to ensure that
these outfalls have been grouped
according to appropriate criteria (for
example do the outfalls serve similar
drainage areas at the facility).
Furthermore, EPA is not requiring that
the permit applicant engage in sampling
to demonstrate that the outfalls are
indeed substantially identical, because
that would of course defeat the purpose
of § 122.21(g)(7). The procedure for
establishing identical outfalls is not that
onerous and provides a means for
industry to save substantially on time
and resources for sampling.
EPA proposed and requested
comment on a requirement that the
facility must sample a storm event that
is typical for the area in terms of
duration and severity The storm event
must be greater than 0.1 inches and must
be at least 96 hours from the previously
measurable (greater than 0.1 inch
rainfall) storm event In general,
variance of the parameters (such as the
duration of the event and the total
rainfall of the event) should not exceed
50 percent from the parameters of the
average rainfall event in that area. EPA.
also requested comments on addressing
snow melt events under this definition.
Commenters stated that: median or
average rainfall is not an acceptable
approach; the minimum depth and
duration of rainfall must be specified;
the allowable 50% variation is
questionable; the total depth of the
storm is irrelevant; and the storm should
be viewed based on the average
intensity of the storm. One commenter
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48818 Federal Register / Vol. 55. No. 222 / Friday, November 16, 1990 /Rules and Regulations
suggested that using the median rainfall
event would be a better approach than
the average rainfall event.
Others insisted that "representative"
or typical storms do not exist in semi-
arid climates and that representative
rainfall must be site-specific (regional)
and seasonal. Several commenters
contended that the requirement for 96
dry hours between events is not
acceptable, with 48 and 72 hours
identified as possible alternatives.
One commenter believed that a
typical standard design storm, such as
the 1-year, 24-hour, or 10-year, 1-hour,
\vould be preferable. Another
commenter felt that the storm event
should be based on the rainfall required
to generate a minimum discharge level.
One commenter questioned whether the
storm is to be sampled at all sites
simultaneously.
To clarify its decision on what storm
event should be sampled, EPA notes
that its selection of the storm event
considers both regional and seasonal
variation of precipitation. This is
evidenced in the rule with regard to
sites in the municipal application (three
events sampled), and in the
requirements for industrial group
applications (a minimum of two
applicants, or one applicant in groups of
less than 10, to be represented in each
precipitation zone (see section VI.F.4
below).
The definition of a 0.1 inch minimum
was determined by NURP and other
studies to be the minimum rainfall depth
capable of producing the rainfall/runoff
characteristics necessary to generate a
sufficient volume of runoff for
meaningful sample analysis. EPA
believes by requiring the average storm
to be used as the basis for sampling that
depth, duration, and therefore average
rainfall intensity are being regionally
defined. The Agency has also added the
option of using the median rainfall event
instead of the average. The potential for
monitoring events that may not meet
this specification should be minimized
by allowing the proposed 50 percent
variation in rainfall depth and/or
duration from event statistics. However,
the SO percent variation need only be
met when possible. Further, there is
flexibility in the rule where the Director
may allow or establish site specific
requirements such as the minimum
duration between the previous
measurable storm event and the storm
event sampled, the amount of
precipitation from the storm event to be
sampled, and the form of precipitation
sampled (snowmell or rainfall). If data is
obtained from a rain event that does not
meet the criteria above, the Director has
the discretion to accept the data as
valid.
The December 7,1988, proposal called
for a 96-hour period between events of
measurable rainfall, here defined as 0.1
inch, which provided a four day
minimum for the accumulation of
pollutants on the surface of the outfalls'
tributary areas. The key word in the
definition is "measurable", which means
that the 96-hour period did not
necessarily have to be dry, only that no
cleansing rainfall (i.e. 0.1 inch rain
event) has occurred. However, after
reviewing comments on this issue EPA
has decided to change the period to 72
hours. Many commenters indicated that
96 hours is too restrictive and that
securing a sample under such
circumstances would be unnecessarily
difficult. EPA agrees that the quality 'or
representativeness of the sample would
not be adversely affected by this
change.
EPA does not agree with comments
that the requirement of a particular
"design" storm would be appropriate.
Many .commenters have expressed
concern that they might sample an event
not meeting the requirements for
industrial group applications as defined.
Because there is no way to know with
sufficient certainty beforehand that an
upcoming event will approximate a one-
year, twenty-four hour storm, many
events would be unnecessarily sampled
before this event is realized.
EPA does not intend that a
municipality or industry be required to
sample all required outfalls for a single
storm. This would represent a
unmanageable investment in equipment
and manpower In some areas, it may be
necessary to sample multiple sites for a
single event due to the irregularity of
rainfall, but not all sites.
EPA described parameters for
selecting storm events for sampling of
municipal and industrial outfalls in the
December 7,1988, proposal. EPA has
received several comments regarding
the problems that rainfall measurement
in general presents. A recurring
comment relative to reporting rainfall.
and in verifying that the storm itself is
representative, deals with the spatial
distribution of rainfall. The rainfall
measured at an airport does not always
represent rainfall at the site, particularly
in summer months when thunderstorms
are prevalent. One commenter stated
that it would be easier to base the
selected storm on either a minimum
discharge, or on a discharge duration
other than on the total precipitation,
because these parameters are easily
measured at the site and are not
dependent on the airport gauges
receiving the same rainfall as the site. A
few commenters questioned how to ,
determine typical storm characteristics.
One commenter advised that NOAA
rainfall reporting stations provide data
that represent only daily rainfall totals,
not storm event data. One commenter
pointed out that the time frame of the
sampling requirement does not consider
that a particular region may be in the
midst of a multi-year drought cycle, and
that what little rainfall occurs may have
uncharacteristically high levels of
pollutants.
The type of rain event sampled is an
important parameter in any attempt to
characterize system-wide loads based
on the sampling results. Rainfall gauges
that report only event total depth wilt
provide the information necessary to
characterize most events, provided that
a reasonable estimate of the event
duration can be made. If simulation
models are to be used in estimating
system-wide loads, rainfall
measurement, based on time and depth
of rainfall will be needed. If the
recording stations are not believed to
accurately reflect this distribution, then
the data will need to be collected by the
applicant at a location central to the
tributary area of the outfall.
The rainfall data collected by NOAA
are in most cases available in the form
of hourly rainfall depths. This
information can be analyzed to develop
characteristic storm depths and
durations. In some cases, this
information has already been analyzed
for many long term reporting stations by
various municipalities, states, and
universities. The results of these-
investigations should be available to the
applicants.
EPA realizes that prolonged rainless
periods occur for both semi-arid areas
and areas experiencing droughts and
that the first storm after a prolonged dry
period may well not be representative of
"normal" runoff conditions. In order for
the appropriate system-wide
characterization of loads to be made,
data must be collected. With regard to
the municipal permit application,
today's rule states that runoff
characterization data will be'collected
during three events at from five to ten
sites. The rule gives the Director the
flexibility-of modifying these
requirements.
EPA has defined the parameters for
selecting the storm event to be sampled
such that at the discretion of the
Director, seasonal, including winter,
sampling might be required. EPA has
received several comments regarding
the problems that snowmelt sampling
may present. Several commenters are
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Federal Register / Vol. 55, No. 222./ Friday, November 16, 1990 / Rules and Regulations 48019
opposed to monitoring of snowmelt
events. The reasons cited include
equipment problems and the
unreasonableness of expecting -this
sampling, because of temperatures and
'the time required for personnel to be
waiting for events. A few comments
addressed the issues of snow pack
depth, ambient temperature, and solar
radiation levels, and that the snow pack
may filter suspended solids or refreeze
such that final melting is
uncharacteristically over-polluted
relative to normal conditions. Another
commenter contended that it is
impossible to manage the melting
process and therefore unreasonable to
expect controls to be implemented
relative to snowmelt. In essence, it is
contended that there is no first
discharge unless the snow pack depth is
low and melts quickly.
A few commenters favor monitoring
snowmelt, for precisely the same reason
that most oppose it: that the runoff from
snowmelt is the most polluted runoff
generated in some areas on an annual
basis. Where this is the case, sampling
snowmelt should be undertaken in order
to accurately assess impacts to receiving
streams. EPA is confident that .in areas
where automated sampling cannot be
relied upon, grab sampling can probably
be performed because the nature of the
snowmelt process tends to make the
timing of samples less of a problem
when compared to typical rainfall
events. EPA disagrees that management
practices, either at industrial facilities or
with regard to municipalities, cannot
address snowmelt. Some areas may
need to reassess their salt application
procedures. In addition retention and
detention devices may address
snowmelt, as well as erosion controls at
construction sites. Thus, obtaining
samples of snowmelt is appropriate to
• allow development of such permit
conditions.
Today's rule also modifies the Form
2C requirements by exempting
applicants from the requirements at
§ 122.21(g)(2) (line drawings). (g)(4)
(intermittent flows), (g)(7) (i), (ii), and (v)
(various sampling requirements to
characterize discharges) if the discharge
covered by the application is composed
entirely of storm water. Permit
applications for discharges containing
storm water associated with industrial
activity would require applicants to
provide other non-quantitative
information which will aid permit
writers to identify which storm water
discharges are associated with
industrial activity and to characterize
the nature of the discharge.
Numerous comments were received
regarding the requirement to submit a
topographic map and site drainage map.
Many of these comments offered
alternatives to EPA's proposal. Two
commenters suggested that a simple
sketch of the site would be sufficient.
Two commenters.stated that one or the
other should be adequate. One
commenter believed that the drainage
map was a good idea, but that the
topographic map should be .optional.
Several commenters submitted that,a
topographic map was sufficient and that
only SPCC plans, or SARA submittals
should supplement that. Another
commenter argued that information
relating to the location of the. nearest
surface water or drinking wells would
be sufficient. Other commenters
believed that a drainage map alone
would indicate all relevant site specific
information. Numerous commenters
expressed concern that the drainage
area map would be too detailed and that
one which depicts the general direction
of flow should be sufficient.
Clarification was requested on whether
the final rule would require the location
of any drinking water wells. One
commenter stated that a U.S.G.S. 7.5
quadrangle map will not illustrate
drainage systems in all cases, and.that
therefore the requirement should be
optional.
Several commenters agreed with
EPA's proposal. One commenter
maintained that drainage maps should
be required from .developments greater
than three acres and from all individual
applicants. Several commenters agreed
with EPA's proposal that both maps
should be provided, with arrows
indicating site drainage and entering
and leaving points. It was advised that
drainage maps are useful in locating
sources of storm water contamination,
and it is useful to identify areas and
activities which require source controls
or remedial action. One commenter
recommended that the map should
extend far enough offsite to demonstrate
how the privately owned system
connects to the publicly owned system.
After considering the merits of all the
comments and the reasons supporting
EPA's proposal, EPA is convinced that a
topographic map and a site drainage
map are necessary components of the
industrial application. Existing permit
application regulations at 40 CFR
122.21(f)(7) require all permit applicants
to submit as part of Form 1 a
topographic map extending one mile
beyond the property boundaries of the
source depicting: the facility and each
intake and discharge structure; each
hazardous waste treatment, storage, or
disposal facility; each well where fluids
from the facility are.injected
underground; and those wells, springs,
other surface water bodies, and drinking
water wells listed in the map area in
public records or otherwise known to
the applicant within one-quarter mile of
the facility property boundary. (See 47
FR 15304, April 8,1982.) However, as
indicated by the comments the
information provided under
§ 122.21(f)(7) is generally not sufficient
by itself for evaluating the nature of
storm water discharges associated with
industrial activity.
As stated in comments, a drainage
map can provide more important site
specific information for evaluating the
nature of the storm water discharge in
comparison to existing requirements,
which require a larger map with only
general information. The volume of
storm water discharge and the
pollutants associated with it will depend
on the configuration and activities
occurring at the industrial site. One
commenter suggested that it would be
appropriate to submit an aerial
photograph of the site with all the
topographic and drainage information
superimposed on the photograph. ;EPA
agrees that this may be an appropriate
method of providing this information.-
EPA is not requiring a specific format for
submitting this information...
EPA is also requiring .that a narrative
description be submitted to accompany
the drainage map. The narrative will
provide a description of on-site. features.
including; existing structures (buildings
which cover materials and other
material covers; dikes; diversion ditches,
etc.) and non-structural controls
(employee training, visual inspections,
preventive maintenance, and
housekeeping measures) that are used to
prevent or minimize the poteritial for
release of toxic and hazardous.
pollutants; a description of significant
materials that are currently or in the
past have been treated, stored or
disposed outside; and the method of
treatment, storage or disposal used. The
narrative will also include: a description
of activities at materials loading and
unloading areas; the location, manner
and frequency in which pesticides,
herbicides, soil conditioners and
fertilizers are applied; a description of
the soil; and a description of the areas
which are predominately responsible for
first flush runoff. This requirement is
unchanged from the proposal.
. Some commenters believed that
information on pesticides, herbicides,
and fertilizers and similar products is
irrelevant, incidental,to the facility's
production activities, and should not.be
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Federal Register / Vol. 55, No. 222 / Friday, November 16, 199O / Rules and Regulations
addressed by this rulemaking. EPA
disagrees. A» these materials are
applied outside and hence subject to
otonn events, they are significant
sources of pollutants in storm water
discharges whether applied in
residential or industrial setting?. By
providing this information in the permit
application the permit writer will be
able to determine whether such activity
is associated with industrial activity and
the subject of appropriate permit
conditions. Nominal or incidental
application of these materials at
industrial facilities andnon-detects in
sampling of storm water discharges for
the permit application will result, in
most cases, in these materials not being
addressed specifically in storm water
permits.
Today's rule also requires that permit
applicants for storm water discharges
associated with industrial activity
certify that all of the outfalls covered in
the permit application have been tested
or evaluated for non-storm water
discharges which are not covered by an
NPDES permit. (The applicant need not
test for nonstorm water if the
certification of the plant storm water
discharges can be evaluated through the
use of schematics or other adequate
method). Section 405 of the WQA added
section 402(p)(3)(B)(ii) to the CWA to
require that permits for municipal
separate storm sewers effectively
prohibit non-storm water discharges to
the storm sewer system. As discussed in
part VI.F.7.b of today's preamble,
untreated non-storm water discharges to
storm sewers can create severe, wide-
spread contamination problems and
removing such discharges presents
opportunities for dramatic
improvements in the quality of such
discharges. Although section
402(pX3)(B)(ii) specifically addresses
municipal separate storm sewers, EPA
believes that illicit non-storm water
discharges are as likely to be mixed
with storm water at a facility that
discharges directly to the waters of the
United States as it is at a facility that
discharges to a municipal storm sewer.
Accordingly, EPA feels that it is
appropriate to consider potential non-
storm water discharges in permit
applications for storm water discharges
associated with industrial activity. The
certification requirement would not
apply to outfalls where storm water is
intentionally mixed with process waste
water streams which are already
identified in and covered by a permit.
This rulemaking requires applicants
for individual permits to submit known
information regarding the history of
significant spills at the facility. Several
commenters indicated that the extent to
which- this information is required
should be modified. One commenter
stated that the requirement should be
limited to those spills that resulted in a
complaint or enforcement action. EPA
disagrees. EPA believes that significant
spills at a facility should generally
include releases of oil or hazardous
substances-in excess of report able
quantities under section 311 of the Clean
Water Act (see 4O CFR 110.10 and 40
CFR 117.21) or section 102 of CERCLA
(see 40 CFR 302.4). Such a requirement is
consistent with these regulations and
the perception that such spills are
significant enough to mandate the
reporting of their occurrence. Some
commenters stated that industries have
already submitted this information in
other contexts and: should not be
required to have to do it again. For the
same reason another commenter felt
that submittal of this information
represents a waste of manpower and
resources. EPA disagrees that requiring
this information is unduly burdensome.
If this information has already been
provided for another purpose it follows
that it is readily available to the
industrial applicant. Thus, the burden of
providing this information cannot be
considered undue. Furthermore, the
permit authority will need to have this
available in order to determine which
drainage areas are likely to generate
storm water discharges associated with
industrial activity, evaluate pollutants of
concern, and develop appropriate permit
conditions. However, to keep this
information requirement within
reasonable limits and limited to
information already available to
individual facilities, EPA has declined to
expand the reporting requirements to
spills of other materials, such as food as
one commenter has suggested. However,
EPA has decided to add raw materials
used in food processing or production to
the list of significant materials.
Materials such as these may find their
way into storm water discharges in such
quantities that serious water quality
impacts occur. These materials may find
there way into storm water from
transportation vehicles carrying
materials into the facility, loading docks,
processing areas, storage areas, and
disposal sites.
One commenter urged that any
information requested should be limited
to a period of three years, which is the
general NPDES records retention
requirement under 40 CFR 122.21(p) and
40 CFR H2,7(d){8). EPA agrees with this
comment and has limited historical
information requirements to the'3 years
prior to the date the application is
submitted. In this manner this regulation
will be consistent with records keeping
practices under the NPDES and Oil Spill
Prevention programs,, except sludge
programs.
The December 7,1988, proposal-
required the applicant to submit a
description of each past or present area
used for outdoor storage or disposal of
significant materials;. One commenter
felt that the definition of significant
material was too imprecise. EPA
disagrees that the language should be
made more precise by delineating every
conceivable material that may add
pollutants to storm water. Rather the
definition is broad, to encourage permit
applicants to list those materials that
have the potential to cause water
quality impacts. Stating what materials
are addressed in meticulous detail may
result in potentially harmful materials
remaining unconsidered in permits.
However, EPA has decided to add
"fertilizers, pesticides, and raw
materials used in the production or
processing of food" to the definition in
response to the comment of one State
authority that such materials need to be
accounted for due to their potential
danger to storm water discharge quality.
This same commenter recommended
that "hazardous chemicals" should be
added. EPA agrees, and will delineate
those chemicals as "hazardous
substances" which are designated under
section 101(14) of CERCLA. Further
clarification has been added by
requiring the listing of any chemical the
facility is required to report pursuant to
section 313 of title III of SARA.
Another commenter felt that EPA
should not require information of past
storage of significant materials. EPA
agrees that this proposed requirement is
overbroad and has limited the time
frame to those materials that were
stored in areas 3 years or fewer from the
date of the permit application. The. 3-
year limit is consistent with other
Agency reporting requirements as
discussed above.
One commenter questioned EPA's
proposal not to provide for a waiver
from the requirement to submit
quantitative data if the applicant can
demonstrate that it is unnecessary for
permit issuance. Another commenter
said that a waiver is inappropriate. EPA
believes relevant quantitative data are
essential to the process, but in this
rulemaking the number of pollutant?.
that must be sampled and analyzed is
reduced compared to previous
regulations. The proposed requirements
for quantitative data-are limited to
pollutants that are appropriate for given
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Federal Register / Vol. 5S. No. 222 / Friday. November 16. 1990 /_Ru|es and Regulation^
48821
site-specific operations, thereby making
a waiver unnecessary.
Although the concept of a waiver is
attractive because of the perceived
potential reduction in burdens for
applicants, EPA believes that because
the storm water discharge testing
requirements have already been
streamlined, a waiver would not in
practice provide significant reductions
in burden for either applicants or permit
issuing authorities. Requirements to
provide and verify data demonstrating
that a waiver is appropriate for a storm
water discharge may prove to be more
of a burden to the applicant and the
permitting authorities. Establishing such
a waiver procedure would be
administratively complex and time-
consuming for both EPA and the
applicants, without any justifiable
benefit. Therefore, this rulemaking does
not include a waiver provision.
In response to one commenter, EPA
wishes to emphasize that if a facility has
zero storm water discharge because it is
discharging to a detention pond only, a
permit application is not required. Only
those discharges to the waters of the
United States or municipal systems need
submit notifications, individual or group
permit applications, or notices of intent
where applicable. However, if the
detention pond overflows or the
discharger anticipates that it may
overflow, then a permit application
should be submitted.
Two commenters agreed with EPA's
proposed requirement to have a
description of past and present material
management practices and controls.
EPA believes that this is important
information directly relating to the
quality of storm water that can be
expected at a particular facility and this
requirement is retained in today's rule.
However, as with other historical
information requirements, EPA is
limiting past practices to those that
occurred within three years of the date
that the application is submitted. One
commenter argued that past practices
should not be considered unless there is
evidence that past practices cause
current storm water quality problems.
EPA anticipates that the information
submitted by the applicant will be used
to make this determination and that
appropriate permit conditions can be
developed accordingly.
One commenter requested
clarification on the certification
requirement that the data and
information in the application is true
and complete to the best of the
certifying officer's knowledge. This is a
fundamental and integral part of all
WDES permit applications. It
essentially requires the signatory to
assure the permit writer, based upon his
or her personal knowledge, that the
information has been submitted without
a negligent reckless, or purposeful
misrepresentation. EPA intends.to
interpret this requirement in the, same
manner-for storm water applications as
other applications.
4. Group Applications
Today's final rule provides some
industries with the option of
participating in a group application, in
lieu of submitting individual permits.
There are several reasons for the group
application. First, the group application
procedure provides adequate
information for issuing permits for
certain classes of storm water
discharges associated with industrial
activity. Second, numerous commenters
supported the concept of the group
application as a way to reduce .the costs
and administrative burdens associated
with storm water permit applications.
Third, group applications will reduce the
burden on the regulated community by
requiring the submission of quantitative
data from only selected members of the
group. Fourth, the group application
process, will reduce the burden on the
permit issuing authority by
consolidating information for reviewing
permit applications and for developing
general permits suited to certain
industrial groups. Where general permits
are not appropriate or cannot be issued,
a group application can be used to
develop model individual permits, which
can significantly reduce the burden of
preparing individual permits.
As noted above in today's preamble,
EPA intends to promulgate a general
permit that will cover many types of
industrial activity. Industrial dischargers
eligible for such permits will generally
be required to seek coverage by
submittal of a notice of intent Facilities
that are ineligible for coverage under the
general permit will be required to submit
an individual permit application or
submit a group application. The group
application process promulgated today
will serve as an important component to
implement Tier III of EPA's industrial
storm water permitting strategy
discussed above. The general permit
which EPA intends to promulgate in the
near future shall set forth what types of
facilities are eligible for coverage.
Some commenters criticized the group
application procedure as an abdication
of EPA's responsibility to effectively
deal with pollutants in storm water
.discharges. One commenter stated that
every facility subject to these
regulations should be •required to submit
.quantitative data. In response EPA
believes, as do numerous commenters,
that the group application procedure is a
legitimate and effective way of dealing
with' a large volume of currently
uncontrolled discharges.: The only
difference-between the group
application procedure and issuing
individual permits based on individual
applications is that the quantitative data
requirements from individual facilities
will be less if certain procedures are
followed. EPA is convinced that marked
improvements hi the process of issuing
permits will be achieved when these
procedures are followed. Where the
storm water discharge from a particular
facility is identified as posing, a special
environmental risk, it can be required to
submit individual applications and
therefore separate quantitative data. It
should also be noted that submittal of a
group application does not exempt a
facility from submitting quantitative
data on its storm water discharge during
the term of the permit
The final rule refines and clarifies
some of the requirements of the group
application approach set forth in the
December 7,1988 proposal. Several
commenters requested that EPA add a
provision which would allow a facility
that becomes subject to the regulations
to "add on" to a group application after
that group application has already been
submitted. One commenter indicated
that some trade associations are
prohibited from engaging in an activity
which would not apply to all its
members, and that an "add on"
provision was needed in the event such
a prohibition was invoked. Another
commenter noted that where a group is
particularly large, for example one that
consists-of several thousand members,
that it would be a logistical feat to
ensure that all facilities eligible as
members of the group are properly
identified and listed on the application
within the 120 day deadline for
submitting part 1A of the application.
.EPA believes that a group applicant
should have a limited ability to add
facilities to the group after part 1A has
been submitted and that a provision
which allows a group or group
representative an unbridled ability to
"add on" is impractical for a number of
reasons. First, 10% of the facilities must
submit quantitative data. Adding
facilities after the group has been
formed and approved would change the
number of facilities that have to submit
quantitative data on behalf of the group.
This would result in an unwarranted
administrative burden on the reviewing
authority, which is in the position of
haying to examine the quantitative data
and determine the appropriateness of
group members-(and those that are
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48022 Federal Register / Vot. 55, No. 222 / Friday. November 16. 1990 / Rules and Regulations
required to submit quantitative data)
within 2 months of receiving part 1 of
the group application. Further, during
the permit application process
permitting authorities will be developing
permit conditions for an identified and
t pro-determined group of facilities.
Allowing potentially significant numbers
of permit applicants to suddenly inject
themselves into a group application
could unnecessarily hamper or disrupt
the timely development of general and
model permits. In addition, if a facility
were "added on" the number of facilities
having to submit quantitative data may
drop below 10%. Thus the facility
desiring to "add on" may be put in the
position of having to submit the
quantitative data themselves, which
would clearly defeat the purpose of
being a part of the group application.
Nevertheless, EPA has added a
provision to 122.26(e) which enables
facilities to add on to a group
application at the discretion of the
EPA's Office of Water Enforcement and
Permits, and upon a showing of good
cause by the group applicant. For the
reasons noted above, EPA anticipates
this provision will be invoked only in
limited cases where good cause is
shown. Facilities not properly identified
in the group application, and which
cannot meet the good cause test will be
required to submit individual permit
applications. EPA will advise such
facilities within 30 days of receiving the
request as to whether the facility may
add on.
However, the "add on" facility must
meet the following requirements: The
application for the additional facility is
made within 15 months of the final rule;
and the addition of the facility does not
reduce the percentage of the facilities
that are required to submit quantitative
data to below 10% unless there are over
100 facilities that are submitting
quantitative data. Approval to become
part of a group application is obtained
from the group or the trade association
and is certified by a representative of
the group; approval for adding on to a
group is obtained from the Office of
Water Enforcement and Permits.
Several commenters stated that the
application requirements for groups are
so burdensome that the advantages of
the process are undermined. These
concerns are addressed in greater detail
below. Among the requirements which
commenters objected are the
requirements to list every group
member's company by name and
address. EPA is convinced that a
condition precedent to approving a
group application is at least identifying
the members of the group. Without such
information it would be impossible to
determine if all the facilities are
sufficiently similar. EPA disagrees that
industries will be dissuaded from using
the group application process because
the advantages of the process are
undermined. Although commenters
perceived many burdens associated
with individual permit applications, by
far the most significant burden
identified by the comments is the
requirement for obtaining and
submitting quantitative data. The group
application significantly reduces this
burden by requiring onlylO% of the
facilities to submit quantitative data if
the number in the group is over 100. If
the number in the group is over 1000,
then only 100 of the facilities need
submit quantitative information. If group
applicants develop cost sharing
procedures to reduce the financial and
administrative burdens of submitting
quantitative data, it is evident that
utilizing the group application could
save industries as much as 90% on the
most economically burdensome aspect
of the application.
Several commenters perceived that
the group application procedure did not
offer them significant savings because
under the proposal their particular
industry would only be required to test
for COD, BODS, pH, TSS, oil and grease,
nitrogen, and phosphorous. These
commenters stated that sampling for
these pollutants is not particularly
expensive. EPA believes that even if a
group is required only to submit minimal
quantitative data on particular
pollutants, substantial savings~can
accrue to a particular industry if the
group has many members. This is
particularly true when the number of
outfalls to be sampled, the information
on storm events, and flow
measurements are factored into the cost
analysis. An additional benefit for
members of the group as well as for
permit issuing agencies is that the
process of developing a permit,
including drafting and responding to
public comments on the permit, is
consolidated by the group application
process. Accordingly, it is less resource
intensive for the group to work with
permit issuance authorities to develop
well founded permit conditions.
One commenter raised a concern
about the situation where one of the
facilities that is designated for
submitting quantitative data drops out
of the group. If this happened, then
another facility would have to submit
quantitative data. In response, EPA
notes that one approach would be for
the group to have one or two more
facilities submit quantitative data than
needed to avoid problems from such a
departure or to account for new
additions to the group. Certainly this
issue goes directly to the facility
selection process which is a critical
component of the group application; the
facilities need to be carefully selected
and reviewe'd by the group to prevent
such difficulties.
Several comments indicated a
confusion over what facilities are
eligible to take advantage of the group
application procedure. Any industry or
facility that is required to submit a
storm water permit application under
these regulations is eligible to
participate in a group application.
However, whether a facility can obtain
a storm water permit under a group
application procedure will depend upon
whether that facility is a member of the
same effluent guideline subcategory, or
is sufficiently similar to other members
of the group to be appropriate for a
general permit or individual permit
issued pursuant to the group application.
Accordingly, group applications are not
limited to national trade associations.
The agency believes that the language in
§ 122.26(c)(2) adequately addresses
these concerns. The process does not
prohibit a particular company with
multiple facilities from filing a group
application as long as those facilities are
sufficiently similar.
One commenter expressed concern
that a single company would not be able
to take advantage of the group
application benefits unless the company
had more than ten facilities. Under such
circumstances the company would have
to become integrated with a larger group
of facilities owned by-other companies
in order to take advantage of the
benefits afforded by the group
application procedure. In response, the
Agency is. providing for a group
application of between four and ten
members, however at least half the
facilities must submit data. One
commenter stated that the number of
facilities required to submit quantitative
data should be determined on a case by
case basis. EPA believes that 10 percent
for groups with over ten members will
be easiest to implement for both .
industry and EPA, and will ensure that
adequate representative quantitative
data are obtained so that meaningful
determinations of facility similarity can
be made and appropriate permit
conditions in general or model permits
can be developed.
Another commenter suggested that
one facility with a multitude of storm
water discharge points should be able to
use the group permit application to
reduce the amount of quantitative data
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Federal Register / Vol. 55, No. 222 / Friday. November 16, 1990 / Rules and Regulations 48023
that it is required to submit This is an
accurate observation but only to the
extent that the facility combines with
several other facilities to form a group.
in which case only 10% of the facilities
need submit quantitative data. The
group application procedure in today's
rule is designed for use,by multiple
facilities only. However, if an individual
facility has 10 outfalls with ten
substantially identical effluents the
discharger may petition the Director to
sample only one of the outfalls, with
that data applying to the remaining
outfalls. See § 122.21{g)(7). Thus,
existing authority already allows for a
"group-like" process for sampling a
subset of storm water outfalls at a single
facility.
Concern was expressed that the spill
reporting requirement from each facility
in part IB would preclude any group
from demonstrating that the facilities
•sampled are -"representative," because
the incidence of past spills is very site-
specific. EPA notes that since it has
dropped the part IB requirements for
other reasons discussed below, this
comment is now moot.
Numerous commenters noted that if a
facility is part of a group application and
is subsequently rejected as a group
applicant, such an entity would not have
a full year to submit an individual
permit application. EPA agrees that this
is a significant concern. Accordingly,
those facilities that apply as a member
of a group application will be afforded a
full year from the time they are notified
of their rejection as a member of the
group to file an individual application.
EPA notes that it intends to act on group
application requests within 60 days of
receipt; thus this approach will only
provide facilities that are rejected from
• a group application a short extension of
the deadline for other individual
applications;
One commenter complained that the
cost of defending a group's choice of
representative facilities may exceed the
cost of submitting an individual permit
application, thereby reducing the
incentive to apply as group. The agency
anticipates that the selection process
will be one open to negotiation between
the affected parties and one that will
end in a mutually satisfactory group of
facilities. It is the intent of EPA to
reduce the costs of submitting a permit
application as much as possible, while
providing adequate information to.
• support permitting activities.
Another commenter argued that the
use of model permits will create a
disincentive for participating in a group
because model permits may be used by
the permit issuing authority to issue
individual permits for discharges from
similar facilities that did not participate
in the group application. EPA does not
agree. The benefit of applying as a group
applicant is to take advantage of
reduced representative quantitative data
requirements. This incentive will exist
regardless of whether or how model
permits are used. Further, technology
transfer can occur during the
development of permits based .on
individual applications as well as those
based on group applications.
One commenter suggested moving
some of the facility specific information
requirements of part 1 of the group
application to part 2 of the group
application in order to provide more
incentive to apply as a group. EPA has
considered this and believes such a
change would be inappropriate. Part 1
information will be used to make an
informed decision about whether
individual facilities are appropriate as
group members and appropriate for
submitting representative quantitative
data: Furthermore, information burdens
from providing site specific factors in
part 1 is relatively minimal, and the
information requirements in the
proposed part IB application have been
eliminated.
One commenter suggested that trade
associations develop model permits
since they have the most knowledge
about the characteristics of the
industries they represent. As noted
above. EPA expects that the industries
and trade associations will have input.
through the permit application process,
as to how permit conditions for storm
water discharges are developed. While
the applicant can submit proposed
permit conditions with any type of
application, EPA however cannot
delegate the drafting of model permits to
the permittees. EPA is developing and
publishing guidance in conjunction with
this rulemaking for developing permit
conditions.
One commenter suggested that-new
dischargers should be able to take
advantage of general permits developed
pursuant to group applications. As with
other general permits, EPA anticipates
that such discharges will be able to fall
within the scope of a general permit
based on a group application where
appropriate.
One commenter stated that the group
application does not benefit
municipalities since there is no
requirement for industrial discharges
through municipal sewers to apply for a
permit. As noted in a previous
discussion, industrial discharges through
municipal sewers must be covered by an
NPDES permit Such facilities may avail
themselves of the group application
procedure. Also, municipalities are not
precluded from developing a group
application procedure under their
management plan for industries that
discharge into their municipal system, in
order to streamline developing controls
for such industries.
One industry wanted clarification that
facilities located within a municipality
would be eligible to participate in a
group application. Ail industrial
activities required to submit an
individual permit are entitled to submit
as part of group application, except
those with existing NPDES permits
covering storm water. Those facilities
that discharge through a municipal
separate storm sewer systems required
to submit an individual application
(because they do not fall within a
general permit) are not precluded from
using the group application procedure if
appropriate.
Other municipalities expressed
confusion over the industrial group
application concept. The following
responds to these comments. First,
municipalities are not eligible for
participation in a group application
because the group application process is
designed for industrial activities.
Sampling requirements for municipal
permit applications are already limited
to a small subset of the outfalls from the
system, as discussed below.
Furthermore, permits for municipal
separate storm sewer systems will be
issued on a system-wide or jurisdiction-
wide basis, rather than individually for
each outfall. Thus, today's regulation
already incorporates a "grouplike"
permit application process for
municipalities. Furthermore, it is highly
unlikely that various municipal storm
sewer systems would be "substantially
similar" enough to justify group
treatment in the same way as industrial
facilities. In response to another
comment, this regulation does not
directly give the municipality
enforcement power over members of an
industrial group who may be discharging
through its system. Only the permitting
authority and private citizens and
organizations (including the
municipality acting in such a capacity)
will have enforcement power over
members of the group once permits are
issued to those members.
One commenter believed that the
States with authorized NPDES programs
rather than EPA should establish permit
terms for permits based on group
applications. In response to this
comment. EPA wishes to clarify its role
in the group application process. Group
applications, will be submitted to EPA
headquarters where they will be
reviewed and summarized. The
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48024 Federal Register / Vol. 55. No. 222 / Friday, November 16, 1990 / Rules and Regulations
summaries of the group application will
be distributed to authorized NPOES
States. EPA wishes to emphasize that
NPDES Stales are not bound by draft
model permits developed by EPA. States
may adopt model permits for use in their
particular area, making adjustments for
local water quality standards and other
regional characteristics. Where general
permit coverage is believed to be
inappropriate, facilities may be required
to apply for individual permits. One
commenler objected to the group
application procedure because it is not
consistent with existing Federal
permitting procedures, whiph will lead
to confusion in the regulated community.
The agency disagrees with this
assessment. The group application is a
departure from established NPDES
program procedures. However, the
comments, when viewed in their
entirely, reflect \videspread support
from the regulated community for a
group application procedure. Further,
the comments reflect that those affected
by this rulemaking understand the
components of the group application and
the procedures under which permits will
be obtained pursuant to the group
qpplication.
One commenter expressed concern
regarding how BAT limits for groups of
similar industries will be developed.
Technology based limits will be
developed based on the information
received from the group applicants. If
the group applicants possess similar
characteristics in terms of their
discharge, BAT/BCT limitations and
controls will be developed accordingly
for those members of the group. If the
discharge characteristics are not similar
then applying industries are not
appropriate for the group.
One commenter has suggested that
the proposed group application is too
complex with regard to the part 1A, part
IB, and part 2 group application
requirements and that EPA should
rcpropose these provisions. As
discussed below, EPA has simplified the
industrial group application
requirements by eliminating the part IB
application. Thus, reproposal is
unnecessary.
One commenter criticized the group
application concept as not achieving
any type of reduction in administrative
burden for NPDES States. EPA disagrees
with this assessment. If industries take
advantage of the group application
procedure, EPA will have an opportunity
to review information describing a large
number of dischargers in an organized
manner. EPA will perform much of the
initial review and analysis of the group
application, and provide NPDES States
with summaries of the applications
thereby reducing the burden on the
States. Furthermore, the procedure
encourages a potentially large number of
facilities to be covered by a general
permit, which will clearly reduce the
administrative burden of issuing
individual permits.
The final rule establishes a regulatory
procedure whereby a representative
entity, such as a trade association, may
submit a group application to the Office
of Water Enforcement and Permits
(OWEP) at EPA headquarters, in which
quantitative data from certain
representative members of a group of
industrial facilities is supplied.
Information received in the group
application will be used by EPA
headquarters to develop models for
individual permits or general permits.
These model permits are not issued
permits, but rather they will be used by
EPA Regions and the NPDES States to
issue individual or general permits for
participating facilities in the State. In
developing such permits, the Region or
NPDES State will, where necessary,
adapt the model permits to take into
account the hydrological conditions and
receiving water quality in their area.
One commenter expressed the view that
having this procedure managed by EPA
headquarters would cause delays and it
should be delegated to the States and
Regions. EPA disagrees that delay will
ensue using this procedure. Furthermore,
consistency in development of model
and general permits can be achieved if
application review is coordinated at
EPA headquarters.
a. Facilities Covered. Under this rule
the group application is submitted for
only the facilities specifically listed in
the application and not necessarily for
an entire industry. The facilities in the
group application selected to do
sampling must be representative of the
group, not necessarily of the industry.
Facilities that are sufficiently similar
to those covered in a general permit
(issued pursuant to a group application)
that commence discharging after the
general permit has been issued, must
refer to the provisions of that general
permit to determine if they are eligible
for coverage. Facilities that have
already been issued an individual
permit for storm water discharges will
not be eligible for participation in a
group application. Several commenters
believed that this restriction is
inequitable since they have experienced
the administrative burden of submitting
a permit application. EPA disagrees.
Industries that have already obtained a
permit for storm water discharges have
developed a storm water management
program, engaged in the collection of
quantitative data, and possess
familiarity and experience with
submitting storm water permit
applications. The Agency sees no point
to instituting an entirely new permit
application process for facilities that
have storm water permits issued
individually. It makes little sense for
these industries to be involved with
submitting another permit application
before their current permit expires.
As noted above, once a general permit
has been issued to a group of
dischargers, a new facility may request
that they be covered by the general
permit. The permitting authority can
then examine the request in light of the
general permit applicability
requirements and determine whether the
facility is suitable or not.
b. Scope of-Group Applications.
Numerous comments were received on
how facilities should be evaluated as
members of a group application. Several
commenters stated that effluent
limitation guideline subcategories are
not relevant to pollutants found in storm
water, but rather to the facility's
everyday activities, and therefore
similarity should be based on each
facility's discharge or the similarity, of
pollutants expected to be found in a
facility's discharge. Other commenters
felt that similarity of operations at
facilities should be the criteria. Others,
believed that an examination of the
facility's impact on storm water quality
should be the applied criteria. Other
commenters suggested that EPA provide
more guidance as to how broadly groups
can be defined and that a failure to do so
would discourage facilities from going to
the trouble and expense of entering into
the group application process. Some
commenters were concerned that
facilities would be rejected as a group
because of variations in processes and
process wastewater characteristics.
EPA does not agree that effluent
limitation guideline subcategories are
inappropriate as a method for
determining group applications. EPA
guideline subcategories are functional
classifications, breaking down facilities
into groups, for purposes of setting
effluent limitations guidelines. The use
of EPA subcategories will save time for
both applicants and permitting
authorities in determining whether a
particular group is appropriate for a
group application. Furthermore, EPA
believes that this method of grouping
provides adequate guidance for
determining what facilities are grouped
together. Establishing groups on the
extent to which a facility's discharge
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Federal Register / VoL 55. No. 222 / Friday. November 16. 1990 /Rules and Regulations 48025
affects storm water quality would not
provide applicants with sufficient
guidance as to the appropriateness of
individual industries for group
applications and would riot provide
information needed to draft appropriate
model permit conditions for potentially
different types of industries, industrial
processes, and material management
practices.
However, EPA recognizes that the
subcategory designations may not
always be available or an effective
methodology for grouping, applicants.
Also, there are situations where
processes that are subject to different
subcategories are combined. EPA agrees
that the group application option should
be flexible enough to allow groups to be
created where subcategories are too
rigid or otherwise inappropriate for
developing group applications or where
facilities are integrated or overlap into
other subcategories. For these reasons,
this rulemaking does not limit the
submission to EPA subcategories alone.
but rather allows groups to be formed
where facilities are similar enough to be
appropriate for general permit coverage.
In determining whether a group is
appropriate for general permit coverage,
EPA intends that the group applicant
use the factors set forth in 40 CFR
122.28(a)(2)(ii), the current regulations
governing general permits, as a guide. If
facilities all involve the same or similar
types of operations, discharge the same
types of wastes, have the same effluent
limitation and same or similar
monitoring requirements, where
applicable, they would probably be
appropriate for a group application. To
that extent facilities that attempt to
form groups where the constituent
makeup of its process wastewater is
dissimilar may run the risk of not being
accepted for purposes of a group
application.
Some commenters expressed the view
that categories formed using general
permit factors are too broad or that the
language is too vague. One commenter
expressed the view that the standard is
too subjective and that permit writers
will be evaluating the. similarity of
discharge too subjectively, while othei
commenters felt that the criteria should
be broad and flexible. Other
commenters stated that the effluent
guideline subcategory or general permit
coverage factors are not related to stom.
water discharges, because much of the
criteria are based upon what is
occurring inside the plant, rather than
activities outside of die plant. EPA
believes that these criteria are
reasonable for defining the scope of a
group application. EPA disagrees that
the procedure, which is adequate for the
issuance o£ general permits, is
inadequate for the development of a
group application. EPA believes that the
activities inside a facility will generally
correspond to activities outside of the
plant that are exposed to storm events.
including stack emissions, material
storage, and waste products.
Furthermore, if facilities are able to
demonstrate their storm water discharge
has similar characteristics, that is one
element in the analysis needed for
establishing that the group is
appropriate. EPA disagrees that the
criteria are too vague. If facilities are
concerned that general permit criteria is
insufficient guidance, then subcategories
under 40 CFR subchapter N should be
used. EPA believes that the program will
function best if flexibility for creating
groups is maintained.
If a NPDES approved State feels that a
tighter grouping of applicants is
appropriate individual permit
applications can be requested from
those permit applicants. One commenter
indicated that it was not clear whether
the group application procedure could
be used for all NPDES requirements.
EPA would clarify that the group
application is designed only to cover
storm water discharges from the
industrial facilities identified in
§ 122.26{b)(14).
As noted above, EPA wishes to clarify
that facilities with existing individual
NPDES permits for storm water are not
eligible to participate in the group
application process. From an
administrative standpoint EPA is not
prepared to create an entirely different
mechanism for permitting industries
which already have such permits.
c. Group Application Requirements.
The group application, as proposed.
included the following requirements in
three separate parts. Part 1A of a group
application included: (A) Identification
of the participants in the group
application by name and location; (B) a
narrative description summarizing the
industrial activities of participants; (C) a
list of significant materials stored
outside by participants; and (D)
identification of 10 percent of the
dischargers participating in the group
application for submitting quantitative
. data.' A proposed part IB of the group
application included the following
information from each participant in the
group application: (A) A site map
showing topography (or indicating the
outline of drainage areas served by the
outfall(s) and related information; (B) an
estimate of the area of impervious
surfaces (including paved areas and
building roofs) and the total area
drained by each outfall and a narrative
description of significant materials; (C) a
certification that'all outfalls that should
contain storm water discharges
associated with industrial activity have
been tested for the presence of non-
storm water discharges: (D) existing
information regarding significant leaks
or spills of toxic or hazardous pollutants
at the facility; (E) a narrative description
of industrial activities at the facility that
are different from or that are-in addition
to the activities described under part
1A; and (F) a list of all constituents that
are addressed in a NPDES permit issued
to the facility for any of non-storm water
discharge. Part 2 of a group application
required quantitative data from 10
percent of the facilities identified.
Some commenters felt that spill
histories, drainage maps, material
management practices, and information
on significant materials stored outside
are too burdensome or meaningless for
evaluating similarity of discharges
among group applicants. Several
commenters stated that such
requirements where the group may
consist of several thousand facilities
were impractical and would not assist
EPA in developing model permits. Manv
commenters insisted that the
requirements imposed in part IB would
effectively discourage use of the group
application procedure. EPA agrees in
large part with these, comments. After
Devaluating the components of part IB,
and the entire rationale for instituting
the group application procedure, EPA
has decided to excise part IB from, the
requirements, and rely on part 1A and
part 2 for developing appropriate permit
condition. Where appropriate, EPA may
require facilities to submit the
information, formerly in part IB, during
the term of the permit. In other cases,
EPA will establish which facilities must
submit individual permit applications
where more site specific permits are
appropriate.
Under the revised part 1 and part 2,
EPA .will receive information pertaining
to the types of industrial activity
engaged in by the group, materials used
by the. facilities, and representative
quantitative data. EPA can use such
information to develop management
practices that address pollutants in
storm water discharges from such
facilities. For most facilities, general
good housekeeping or management
practices will eliminate pollutants in
storm Water. Such requirements can be
further refined by determining the
nature of a group's industrial activity
and by obtaining information on
material used at the facility and
representative quantitative data from a
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48026 Federal Register / Vol. 55, No. 222 / Friday, November 16, 1990 / Rules and Regulations
percentage of the facilities. Thus, EPA is
confident that model permits and.
general permits can be developed from
the information to be submitted under
part 1 and part 2.
One commenter felt that more
guidance on what makes a facility
representative for sampling as part of a
group Is needed. In response, the
Agency believes the rule as currently
drafted provides adequate notice.
Another commenter asked how much
sampling needed to be done and how
much monitoring will transpire over the
life of the permit for members of a
group. This will vary from permit to
permit and will be determined in permit
proceedings. This rulemaking only
covers the quantitative data that is to be
tubmitted in the context of the group
permit application.
One commenter indicated that
because of the amount of diversity in the
operations of a particular industry,
obtaining a sample that could be
considered representative would be
extremely difficult. EPA recognizes that
obtaining representative quantitative
data through the group application
process will prove to be difficult;
however, EPA has sought to minimize
these perceived problems. Under the
group application concept, industries
must be sufficiently similar to qualify.
Industries which have significantly
different operations from the rest of the
group that affects the quality of their
storm water discharge may be required
to obtain an individual permit. Use of
the nine precipitation zones will enable
the data in the permit application to be
more easily analyzed and patterns
observed on the basis of hydrology and
other regional factors. How EPA will
evaluate the representativeness of the
sample is discussed below.
Several commenters asked why the
precipitation zone of group members is
relevant to the application. The need to
identify precipitation zones arises
because the amount of rainfall is likely
to have a significant impact on the
quality of the receiving water.
According to an EPA study
(Methodology for Analysis of Detention
Basins for Control of Urban Runoff
Quality; Office of Water, Nonpoint
Source Branch, Sept. 1986) the United
States can be divided into nine general
precipitation zones. These zones are
characterized by differences in
precipitation volume, precipitation
intensity, precipitation duration, and
precipitation intervals. Industrial
facilities that seek general permits via
the group application option may show
significantly different loading rates as a
result of these regional precipitation
differences. As an example,
precipitation in Seattle, Washington,
located in Zone 7, approaches the mean
annual storm intensity of .024 inches/
hour with a mean annual storm duration
of 20 hours for that Zone. In contrast,
precipitation in Atlanta, Georgia,
located in Zone 3 approaches the mean
annual storm intensity of .102 inches/
hour and a mean storm duration of 6.2
hours for that Zone. Atlanta, receives on
the average four times more
precipitation per hour with storms
lasting one-third as long. As a result of
these differences, if identical facilities
within a group application were situated
in each of these areas, their storm water
discharges would likely exhibit different
pollutant characteristics. Accordingly,
data should be submitted from facilities
in each zone.
One commenter felt that the EPA
should abandon or modify its rainfall
zone concept, because storm water
quality will depend more on what
materials are used at the facility than
rainfall. EPA disagrees. Because storm
water loading rates may differ
significantly as a result of regional
precipitation differences, it is necessary
that for each precipitation zone
containing representatives of a group
application, the group must provide
samples from some of those
representatives. In comments to
previous rulemakings it was argued that
the amount of rainfall will affect the
degree of impact a storm water
discharge may have on the receiving
stream.
One commenter stated that the
precipitation zones illustrated in
appendix E of the proposed rulemaking
do not adequately reflect regional
differences in precipitation and that in
some cases the zones cut through cities
where there are concentrations of '
industries without differences in their
precipitation patterns. The rainfall zone
map is a general guide to determining
what areas of the country need to be
addressed when determining
representative rainfall events and
quantitative data. When dealing with
rainfall on a national scale, it is near
impossible to make generalized
statements with a great deal of
accuracy. In the case of rainfall zones,
rainfall patterns may be similar for
facilities in close proximity to each
other but none the less in different
rainfall zones. In response, EPA has
created these zones to reflect regional
rainfall patterns as accurately as
possible. Because of the variable nature
of rainfall such circumstances are sure
to arise. However, in order to obtain a
degree of representativeness EPA is
convinced that the use of these rainfall
zones as described is appropriate for the
submittal of group applications and the
quantitative data therein.
The second and third requirements of
part 1 of the group application instruct
the applicant to describe the industrial
activity (processes) and the significant
materials used by the group. For the
significant materials listed, the applicant
is to discuss the materials management
practices employed by members of the
group. For example, the applicant should
identify whether such materials are
commonly covered, contained, or
enclosed, and whether storm water
runoff from materials storage areas is
collected in settling ponds prior to
discharge or diverted away from such
areas to minimize the likelihood of
contamination. Also, the approximate
percentage of facilities in the group with
no practices in place to minimize
materials stored outside is to be
identified.
EPA considers that the processes and
materials used at a particular facility
may have a bearing on the quality of the
storm water. Thus, if there are different
processes and materials used by
members of the group, the application
must identify those facilities utilizing the
different processes and materials, with
an explanation as to why these facilities
should still be considered similar.
One .commenter felt that a facility
should be able to describe in its permit
application the possibility of individual
materials entering receiving waters. EPA
supports the applicant adding site
specific information which will assist
the permit writer making an informed
decision about the nature of the facility,
the quality of its storm water discharge,
and appropriate permit conditions.
The fourth element of part 1 of the
group application is a commitment to
submit quantitative data from ten
percent of the facilities listed. EPA
proposed that there must be a minimum
of ten and a maximum of one hundred
facilities within a group that submit
data. Comments reflected some
dissatisfaction with this requirement.
Some commenters asserted that ten
percent was too high a number and
would discourage group applications,
while one commenter suggested a lesser
percentage would be appropriate where
the group can certify that facilities are
representative. One commenter
suggested that EPA have the discretion
to allow for a smaller percentage.
Several commenters argued that EPA
should be satisfied with fewer than ten
percent because EPA often relies on
data from less than ten percent of the
plants in a subcategory when
promulgating effuent guidelines and that
EPA should rely on data collection goals
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Federal .Register / Vdl. 55, No. 222 / Friday, November 16. 1990 / Rules and Regulations 48027
with affected groups as was done in the
1985 storm water proposal. Other
commenters pointed out that an
anomalous situation could arise where
the group was small and facilities were
scattered throughout the precipitation
' zones. For example, if a group consisted
of 20 members where a minimum of ten
facilities had to submit samples, and
two or more members were in each
precipitation zone; a total of 18 facilities
(90% of the group) would have to submit
quantitative data. EPA believes that
there must be a sufficient number of
facilities submitting data for any
patterns and trends to be detectable.
However, in light of these comments
EPA has decided to modify the language
in § 122.26(c) to allow 1 discharger in
each precipitation zone to submit
quantitative data where 10 or fewer of
the group members are located in a
particular precipitation zone. EPA
believes, however, that one hundred
facilities would in most cases be
sufficient to characterize the nature of
the runoff and thus 100 should remain
the maximum. If the data are
insufficient, EPA has the authority to
request more sampling under section 308
of the CWA.
One commenter suggested that the ten
facility cutoff was unreasonable, and
that instead of cutting off the group at
ten, allow a smaller number in the group
and allow the facilities to sample ten
percent of their outfalls instead. EPA
agrees, in part, and will allow groups of
between four and ten to submit a group
application. However, the ten percent
rule would not be effective in such
cases. Therefore, at least half the
facilities in a group of four to ten will be
required to provide quantitative data
from at least one outfall, with each
precipitation zone represented by at
least one facility.
For any group application, in addition
to selecting a sufficient number of
facilities from each precipitation zone,
facilities selected to do the sampling
should be representative of the group as
a whole in terms of those characteristics
identifying the group which were
described in the narrative, i.e., number
and range of facilities, types of
processes used, and any other relevant
factors. If there is some variation in the
processes used by the group (40 percen'
of the group of food processors are
canners and 60 percent are canners and
freezers, for example), the different
processes are to be represented. Also,
samples are to be provided from
facilities utilizing the materials.
management practices identified,
including those facilities which use no
materials management practices. The
representation of these different factors,
to the extent feasible, is to be roughly
equivalent to their proportion in the
group.
EPA wishes to emphasize that the
provision that ten percent of the
facilities need to submit quantitative
'data only applies to the permit
application process. The general or
individual permit itself may require
quantitative data from each facility.
Submittal of Part 2 of the Group
Application. As with part 1, part 2 of the
Group Application would be submitted
to the Office of Water Enforcement and
Permits, in Washington, DC. If the
information is incomplete, or simply is
found to be an inadequate basis for
establishing model permit limits, EPA
has the authority under section 308 of
the Clean Water Act to require that
more information be submitted, which
may include sampling from facilities that
were part of the group application but
did not provide data with the initial
submission. If the group application is
used by a Region or NPDES State to
issue a general permit, the general
permit should specify procedures for
additional coverage under the permit.
If a part 2 is unacceptable or
insufficient, EPA has the option to
request additional information or to
require that the facilities that
participated in the group application
submit complete individual applications
(e.g. facilities that have submitted Form
1 with the group application may be
required to submit Form 2F, or facilities
which have submitted complete Form 1
and Form 2F information in the group
application generally would not have to
submit additional information).
Once the group applications are
reviewed and accepted, EPA will use
the information to establish draft permit
terms and conditions for models for
individual and general permits. NPDES
approved States and EPA regional
offices will continue to be the permit-
issuing authority for storm water
discharges. The NPDES approved States
accepting the group application
approach and the EPA Regions may then
take the model permits and adapt them
for their particular area, making
adjustments for local water quality
standards and other localized
characteristics, and making
determinations as to the need for an
individual storm water permit where
general permit coverage is felt to be
inappropriate. Permits would be
proposed by the Region or NPDES
approved State in accordance with
current regulations for public comment
before becoming final. In NPDES States
w'thout general permit authority, or
where an individual permit is deemed
appropriate, the model permit can serve
as the basis for issuing an individual '
permit.
The group application is an NPDES
permit application just like any other
and, as such, would be handled through
normal permitting procedures, subject to
the regulatory provisions applicable to
permit issuance. Incomplete or
otherwise inadequate submissions
would be handled in the same manner
as any other inadequate permit
application. The permit issuing authority
would retain the right to require
submission of Form 1, Form 2C and
Form 2F from any individual discharger
it designates.
Some commenters offered other
procedures for developing a group
application procedure; however, these
were frequently entirely different
approaches or so novel that a
reproposal would be required. One
commenter suggested that those
industries that are identified as being
likely to pollute should be required to
submit quantitative data. Numerous
commenters contended that a generic
approach for meeting the required
information requirements for group.
applications would allow EPA to
develop adequate general permits. EPA
does not view these approaches as
appropriate.
5. Group Application: Applicability in
NPDES States
Many commenters expressed concern
about how the group application
procedure will work within the
framework of an NPDES approved State.
The relationship .between EPA and the
States that are authorized to administer
the NPDES program, including
implementation of the storm water
program, is a complicated aspect of this
rulemaking. Approved States (there are
38 States and one territory so approved)
must have requirements that are at least
as stringent as the Federal program; they
may be more stringent if they choose.
Authority to issue general permits is
optional with NPDES States.
EPA has determined that ten percent
of the facilities must provide
quantitative data in the permit
application as noted above.
Furthermore, these applications are
submitted to EPA headquarters.
Consequently States, whether NPDES
approved or not, are not in a position to
reject or modify this requirement. Such
States may determine the amount of
sampling to be done pursuant to permit
conditions. If they choose to issue
general permits they may include such
authority in their NPDES program and.
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48028
Federal-Register / Vol. 55. No. 222 / Friday, November 16. 1990 / Rules and Regulations
upon approval of the program by EPA,
may then issue general permits. Within
the context of the NPDES provisions of
the CWA, if States do not have general
permitting authority, then general
permits are not available in those
States.
In response to one comment, EPA
does not have authority to issue general
or individual permits to facilities in
NPDES approved states. Today's rule
provides a means for affected industries
to be covered by general permits
developed via the group application
procedure as well as from general
permits developed independently of the
group application process. Accordingly,
today's rule anticipates that most
NPDES States will seek general permit
issuance authority to implement the
storm water program in the most
efficient and economical way. Without
general permit issuance authority
NPDES States will be required to issue
individual permits covering storm water
discharges to potentially thousands of
industrial facilities.
One commenter recommended that
States with approved NPDES programs
should be involved in determining what
industries are representative for
submitting quantitative data. EPA
recognizes that States will have an
interest in this determination and may
possess insight as to the
appropriateness of using some facilities.
However, EPA may be managing
hundreds of group applications and
approving or disapproving them as
cxpcditiously as possible. EPA believes
that involving the States in this already
administratively complex and time
consuming undertaking would be
counterproductive. In any event, NPDES
approved States are not bound by the
determinations of EPA as to the
appropriateness of groups or the
issuance of permits based on model
permits or individual permits. However,
States will be encouraged to use model
permits that are developed by EPA. EPA
will endeavor to design general and
model permits that are effective while
also adaptable to the concerns of
different States. Again, States are able
to develop more stringent standards
Vjfhere they deem it to be appropriate.
there are currently seventeen States
that have authority to issue general
permits: Arkansas, Colorado, Illinois,
Kentucky, Minnesota, Missouri,
Montana, New Jersey, North Dakota,
Oregon, Rhode Island, Utah,
Washington, West Virginia and
Wisconsin. As suggested in the
comments, EPA is encouraging more
S'ates to develop general permit issuin.
authority in order to facilitate the
permitting process.
One commenter advised that the rules
should state that a NPDES approved
State may accept a group application or
require additional information. EPA has
decided not to explicitly state this in the
rule. However, this comment does raise
some points that need to be addressed.
Because the group application option is
a modification of existing NPDES permit
application requirements, the State is
free to adopt this option, but is not
required to. If the State chooses to adopt
the group application and it does not
have general permit authority, the group
application can be used to issue
individual permits. If an approved
NPDES State chooses to not issue
permits based on the group application,
facilities that discharge storm water
associated with industrial activity that
are located in that State must submit
individual applications to the State
permitting authority. Before submitting a
group application, facilities should
ascertain from the State permitting
authority whether that State intends to
issue permits based upon a group
application approved by EPA for the
purpose of developing general permits.
For facilities that discharge storm water
associated with industrial activity which
are named in a group application, the
Director may require an individual
facility to submit an individual
application where he or she determines
that general permit coverage would be
inappropriate for the particular.facility.
One commenter stressed that EPA
should streamline the procedure for
States desiring to obtain general permit
coverage. EPA has, over the last year,
streamlined this procedure and
encourages States to take advantage of
this procedure. EPA recommends that
States consider obtaining general permit
authority as a means to efficiently issue
permits for storm water discharges.
These States should contact the Office
of Water Enforcement and Permits at
EPA Headquarters as soon as possible.
6. Group Application: Procedural
Concerns
One commenter claimed tnat the
proposed group application process and
procedures violated federal law. This
commenter claimed that EPA was
abrogating its responsibility by allowing
a trade association to design a data
collection plan in lieu of completing an
NPDES application form designed by
EPA, thus violating the Federal
Advisory Committee Act. The
commenter stated that EPA would.be
improperly influenced by special
interests if trade associations were able
to design their own storm water data
gathering plans. The commenter further
asserted that any decisions by EPA on
the content of specific group
applications would be rulemakings and
thus subject to the provisions of the
Administrative Procedure Act.
EPA disagrees with the comment that
the group application violates the
Federal Advisory Committee Act
(FACA). FACA governs only those
groups that are established or "utilized"
by an agency for the purpose of
obtaining "advice" or
"recommendations." The group
application option does not solicit or
involve any "advice" or
"recommendations." It simply allows
submission of data by certain members
of a group in accordance with specific
regulatory criteria for determining which
facilities are "representative" of a group.
As such, the group application is merely
a submission in accordance and in
compliance with specific regulatory
requirements and does not contain
discretionary uncircumscribed "advice"
or "recommendations" as to which
facilities are representative of a group.
Thus, the determination of which
facilities should submit testing data in
accordance with regulatory criteria is
little different from many other
regulatory requirements where an
applicant must submit information in
accordance with certain criteria. For
example, under 40 CFR 122.21 all
outfalls must be tested except where
two or more have "substantially
identical" effluents. Similarly,
quantitative data for certain pollutants
are to be provided where the applicant
knows or "has reason to believe" such
pollutants are discharged. Both of these
provisions allow the applicant to
exercise discretion in making certain
judgments but such action is
circumscribed by regulatory standards.
EPA further has authority to require
these facilities to submit individual
applications. In none of these instances
are "recommendations" or "advice"
involved. EPA also notes that it is
questionable whether, in providing for
group applications, it is "soliciting"
advice or recommendations from groups
or that such groups are being "utilized"
by EPA as a "preferred source" of
advice. See 48 FR 19324 (April 28,1983).
Furthermore, this data collection effort
may be supplemented by EPA if, after
review of the data, EPA determines
additional data is necessary for permit
issuance. Other information gathering
may act as a check on the group
applications received.
EPA also does not agree with this
commenter's claim that the group
application scheme represents an
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Federal Register / Vol. 55. No. 222 / Friday, November 16. 1990 / Rules and Regulations 4U029
impermissible delegation,ojF.the.
Administrator's function in violation of
the.CWA regarding data gathering. The
Administrator has the broadest
discretion in determining what
information is needed for permit
development as well as the manner in
which such information will be
collected. The CWA does not require
every discharger required to obtain a
permit to file an application^ Nor. does
the CWA require that the Administrator
obtain data on which a permit is to be
based through a formal application
process (see 40 CFR 122.21). For years
"applications" have not been required
from dischargers covered by general
permits. EPA currently obtains much
information beyond that provided in
applications pursuant to section 308 of
the CWA. This is especially true with
respect to general permit and effluent
limitations guidelines development. The
group application option is simply
another means of data gathering. The
Administrator may always collect more
data should he determine it necessary
upon review of a groups' data
submission. And, he may obtain such
additional data by whatever means
permissible under the Statute that he
deems appropriate. Thus, it can hardly
be said that by this initial data gathering
effort the Administrator has delegated
his data gathering responsibilities. In
addition, since groups are required to
select "representative" facilities, etc., in
accordance with specific regulatory
requirements established by the
Administrator and because EPA will
scrutinize part 1 of the group
applications and either accept or reject
the group as appropriate for a group
application, no impermissible delegation
has occurred. EPA will make an
independent determination* of the
acceptability of a group application in
view of the information required to be
submitted by the group applicant, other
information available to EPA (such as
information on industrial subcategories
obtained in developing effluent
limitations guidelines as well as
individual storm water applications
received as a result of today's rule) and
any further information EPA may
request to supplement part 1 pursuant to
section 308 of the CWA. Moreover, any
concerns that a general permit may be
based upon biased data can be dealt
with in the public permit issuance
process.
Finally, EPA also does not agree that
the group application option violates the
Administrative Procedures Act. Again,
the group application scheme is simply a
data gathering device. EPA could very
well have determined to gather data
informally via specific requests pursuant
to section 308 of the CWA. In fact,
general permit and effluent limitations
guideline development proceed along
these lines. It would make little sense if
the latter informal data gathering
process were somehow illegal simply
because it is set forth in a rule that
allows applicants some relief upon
certain showings. In this respect, several
of EPA's existing regulations similarly
allow an applicant to be relieved from
certain data submission requirements
upon appropriate demonstrations. For
example, testing for certain pollutants
and or certain outfalls may be waived
under certain circumstances. Most
importantly, the operative action of
concern that impacts on the public is
individual or general permit issuance
based upon data obtained. As
previously stated, ample opportunity for
public participation is provided in the
permit issuance proceeding.
7. 'Permit Applicability and Applications
for Oil and Gas and Mining Operations
Oil, gas and mining facilities are
among those industrial sites that are
likely to discharge storm water runoff
that is contaminated by process wastes,
toxic pollutants, hazardous substances,
or oil and grease. Such contamination
can include disturbed soils and process
wastes containing heavy metals or
suspended or dissolved solids, salts,
surfactants, or solvents used or
produced in oil and gas operations.
Because they have the potential for
serious water quality impacts, Congress
recognized, throughout the development
of the storm water provisions of the
Water Quality Act of 1987, the need to
control storm water discharges from oil,
gas, and mining operations, as well as
those associated with other industrial
activities.
However, Congress also recognized
that there are numerous situations in the
mining and oil and gas industries where
storm water is channeled around plants
and operations through a series of
ditches and other structural devices in
order to prevent pollution of the storm
water by harmful contaminants. From
the standpoint of resource drain on both
EPA as the permitting agency and
potential permit applicants, the
conclusion was that operators that use
good 'management practices and make
expenditures to prevent contamination
must not be burdened with the
requirement to obtain a permit. Hence,
section 402(1)(2) creates a statutory-
exemption from storm water permitting
requirements for uncontaminated runoff
from these facilities.
To implement section 402(1)(2), EPA
intends to require permits for
contaminated storm water discharges
from oil, gas and mining operations.
Storm water discharges that are not
contaminated by contact with any
overburden, raw material, intermediate
products,, finished product, byproduct or
waste products located on the site of
such operations will not be required to
obtain a storm water discharge permit.
The regulated discharge associated
with industrial activity is the discharge
from any conveyance used for collecting
and conveying storm water located at
an industrial plant or directly related to
manufacturing, processing or raw
materials storage areas at an industrial
plant. Industrial plants include facilitie's
classified as Standard Industrial.
Classifications (SIC) 10 through 14 (the
mining industry), including oil and gas
exploration, production, processing, and
treatment operations, as well as
transmission facilities. See 40 CFR
122.26(b)(14)(iii). This also includes
plant areas that are no longer used for
such activities, as well as areas that are
currently being used for industrial
processes.
a. Oil and Gas Operations. In
determining whether storm water
discharges from oil and gas facilities are
"contaminated", the legislative history
reflects that the EPA should consider
whether oil, grease, or hazardous
materials are present in storm water
runoff from the sites described above in
excess of reportable quantities (RQs)
under section 311 of the Clean Water
Act or section 102 of the Comprehensive
Environmental Response,
Compensation, and Liability Act of 1980
(CERCLA). [Vol. 132 Cong. Rec. H10574
(daily ed. October 15,1986) Conference
Report].
Many of the comments received by
EPA regarding this exemption focused
on the concern that EPA's test for
requiring a permit is and would subject
an unnecessarily large number of oil and
gas facilities to permit application
requirements. Specific comments made
in support of this concern are addressed
below.
A primary issue raised, by commenters
centered on how to determine when a
storm water discharge from an oil or gas
facility is "contaminated'.', and therefore
subject to the permitting program under
section 402 of the CWA. Many of the
comments received from industry
representatives objected to the Agency's
intent as expressed in the proposal to
use past discharges as a trigger, for
submitting permit applications.
The proposed rule provided that the
notification requirements for releases in
excess of RQs established under the
CWA and CERCLA would serve as a
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48030 Federal Register / Vol. 55, No. 222 / Friday, November 16, 1990 / Rules and Regulations
basis for triggering the submittal of
permit applications for storm water
discharges from oil and gas facilities. As
described in the proposal, oil and gas
operations that have been required to
notify authorities of the release of either
oil or a hazardous substance via a storm
water route would be required to submit
a permit application. In other words, any
facility required to provide notification
of the release of an RQ of oil or a
hazardous substance in storm water in
the past would be required to apply for a
storm tvaler permit under the current
rule. In addition, any facility required to
provide notification regarding a release
occurring from the effective date of
today's rule forward would be required
to apply for a storm water permit.
Commenters maintained that the use
of historical discharges to require permit
applications is inconsistent with the
language and intent of section 402(1)(2)
of the CWA, and relevant legislative
history, both of which focus on present
contamination. Requiring storm water
permits based solely on the occurrence
of past contaminated discharges, even
where no present contamination is
evident, would go beyond the statutory
requirement that EPA not issue a permit
absent a finding present contamination.
Commenters also noted that the
proposal did not take into account the
fact that past problems leading to such
releases may have been corrected, and
that requiring an NPDES permit may no
longer be necessary. The result of such a
requirement, commenters maintained,
would be an excessive number of
unnecessary permit applications being
submitted, at significant cost and
minimal benefit to both regulated
facilities^and regulating authorities.
Commenters also indicated that using
the release of reportable quantities of
oil, grease or hazardous substances as a
permit trigger would identify discharges
of an isolated nature, rather than the
continuous discharges, which should be
the focus of the NPDES permit program
under section 402. Such an approach,
commenters mainta'ined, is inconsistent
with existing regulations under section
311 of the CWA, and would result in
permit applications from facilities that
are more appropriately regulated under
section 311.
Despite these criticisms, many
commenters recognized that the Agency
la left with the task of determining when
discharges from oil and gas facilities are
contaminated, in order to regulate them
under section 402(1)(2). It was suggested
by numerous commenters that the EPA
adopt an approach similar to that used
under section 311 of the-CWA for Spill
Prevention Control and Countermeasure
(SPCC) Plans. Under SPCC, facilities
that are likely to discharge oil into
waters of the United States are required
to maintain a SPCC plan. In the event
the facility has a spill of 1,000 gallons or
2 or more reportable quantities of oil in
a 12 month period, the facility is
required to submiHts SPCC plan to the
Agency. The triggering events proposed
by the commenters for storm water
permits for oil and gas operations are
six reportable sheens or discharges of
hazardous substances (other than oil) in
excess of section 311 or section 102
reportable quantities via a storm water
point source route over any thirty-six
month period. It was suggested that if
this threshold is reached, an operator
would then file a permit application (or
join a group application) based upon the
presumption that its-current storm water
discharges are contaminated.
In response to these comments, the
Agency believes that past releases that
are reportable quantities can be a valid
indicator of the potential for present
contamination of discharges. The
legislative history as cited above
supports this conclusion. EPA would
note that the existence of a RQ release
would serve only as a triggering
mechanism for a permit application.
Under the proposed rule, evidence of
past contamination would merely
require submission of a permit
application and would not be used as
conclusive evidence of current
contamination. The determination as to
whether a permit would be actually
required due to current contaminated
discharge would be made by the
permitting authority after reviewing the
permit application. The fact of a past RQ
release does not necessarily imply a
conclusive rinding of contamination,
only that sufficient potential for
contamination exists to warrant a
permit application or the collection of
other further information. Today's rule
does not change the proposed approach
in this respect. Thus, EPA does not
believe that today's rule exceeds the
authority of section 402(1)(2).
EPA believes that there is no legal
impediment to using past RQ discharges
as,a trigger for requiring a storm water
permit application. EPA notes .that, as
mentioned above, even those
commenters who objected to the
proposed test on legal authority grounds
merely offered an alternate test that
requires more releases to have occurred
within a shorter period of time before a
permit application is required.
Therefore, the only disagreement that
remains is over what constitutes a
reasonable test that will identify
facilities with the potential for storm
water contamination;- EPA notes, that
neither the statute nor the legislative
history provides any guidance on this
question. Furthermore, EPA disagrees
with the commenters who suggested that
6 releases in the past 3 years or 2
releases in the past year are necessarily
more valid measures of the potential for
current contamination than EPA's
proposed test. There is no statistical or
other basis for preferring one test to the
other. However, EPA does agree with
those commenters that suggest that a
single release in the distant past may
not accurately reflect current conditions
and the current potential for
contamination.
EPA has therefore amended today's
rule to provide that only oil and gas
facilities which have had a release of an
RQ of oil or hazardous substances in
storm water in the past three years will
be required to submit a permit
application. EPA believes that limiting
the permit trigger to events of the past
three years will address commenters'
concerns regarding the use of "stale
history" in determining whether an
application is required. EPA notes that
the three year cutoff is consistent with
the requirement for industrial facilities
to report significant leaks or spills at the
facility in their storm water permit
applications. See 40 CFR
Commenters asserted that EPA and
the States must have some reasonable
basis for concluding that a storm water
discharge is contaminated before
requiring permit-applications or permits.
Commenters believed that
§ 122.26(c)(l)(iii)(B) as proposed implied
that the Agency's authority in this
respect is unrestricted. In response, EPA
may collect such data by whatever
appropriate means the statute allows, in
order to obtain information that a permit
is required. Usually, the most practical
tool for doing so is the permit
application itself. However, if necessary
to supplement the information made
available to the Agency, EPA has broad
authority to obtain information
necessary to determine whether or not a
permit is required, under section 308 of
the Clean Water Act. Given the plain
language of the CWA and the
Congressional intent as manifested in
the legislative history, the Agency is
convinced that the approach describee.
above is appropriate. Yet, as further
discussed below, EPA has also deleted
as redundant § 122.26(c)(l)(rii)(B).
Regarding the types of facilities
included in the storm water regulation, a
number of commenters suggested that
the Agency has misconstrued the
meaning of facilities "associated with
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Federal Register / Vol. 55. No. 222 / Friday. November 16. 1990 / Rules and Regulations 48031
industrial activity", and has proposed an
overly broad definition of such' facilities
in the oil and gas industry: Specifically.
commenters suggested that only the
manufacturing sector of the'oil and gas
industry should be subject to storm
water permit application requirements,
and 'that exploration and production
activities, gas stations, 'terminals, and
bulk plants should all be exempted from
storm water' permitting requirements.
Commeriters maintain that this broad
interpretation would subject many oil
and gas facilities to the storm water
permit requirements, when these were
not intended by Congress to be so
regulated. As a second point related to
this issue, some commenters felt that
transmission facilities were not intended
to be regulated under the storm water
provisions, and should be exempted
from permit requirements. This would be
consistent, it was argued, with
legislative history which'concluded that
transmission facilities do not
significantly contribute to the
contamination of water.
The Agency disagrees that these
facilities do not fall under the storm
water permitting requirements as
envisioned by Congress. SIC 13, which
is relied upon by EPA to identify these
oil and gas operations, describes oil and
gas extraction industries as including
facilities related to crude oil and natural
gas, natural gas liquids, drilling oil and
gas wells, oil and gas exploration and
field services. Moreover, legislative
history as it applies to industrial
activities, and thus to oil and gas
(mining) operations, expressly includes
exploration, production, processing,
transmission, and treatment operations
within the purview of storm water
permitting requirements and
exemptions. EPA's intent is for storm
water permit requirements (and the
exemption at hand) to apply to the
activities listed above (exploration,
production, processing; treatment, and
transmission) as they relate to the
categories listed in SIC 13.
Commenters requested clarification
from the Agency that storm water
discharges from oil and gas facilities
require a permit or the filing of a permit
application only when they are
contaminated at the point of discharge .
into waters of the United States.
Commenters noted that large amounts of
potentially contaminated stormwater
may not enter' waters of the United
States, Or may enter' at 'a point once the
'discharge is no longer "contaminated".
In these cases, it should be clear that no
•permit or permit application is required.
EPA agrees'- that oil and gas
. exploration, production, processing, or
treatment operations or transmission.
facilities mast only obtain a storm water
permit -when a discharge to waters of
the U:S-. (including those discharges
through municipal separate storm
sewers) is contaminated. A permit •
application will be required when any
discharge in the past'three years or
henceforth meets the test discussed
above.
Under the proposed rule, the Agency
stated at § i22.26(c}(l)(iii)(B) that the
Director may require on a case-by-case
basis the operator of an existing or new
storm water discharge from an oil or gas
exploration, production, processing, or
treatment operation, or transmission
facility to submit an individual permit
application. The Agency has removed
this section since CWA section 402(1)(2),
as codified in 122.26(cj(l)(iii)(A),
adequately addresses every situation
where a permit should be required for
these facilities.
b. Use of Reportable Quantities to
Determine if a Storm Water Discharge
from an Oil or Gas Operation is
Contaminated Section 311(b)(5) of the
CWA requires reporting of certain
discharges of oil or a hazardous
substance into waters of the United
States (see 44 FR 50766 (August 29,
1979)). Section 304(b}(4) of the Act
requires that notification levels for oil
and hazardous substances be set at
quantities which may be harmful to the
public health or welfare of the United
States, including but not limited to fish,
shellfish, wildlife, and public or private
property, shorelines and beaches.
Facilities which discharge oil or a
hazardous substance in quantities equal
to or in excess of an RQ, with certain
exceptions, are required to notify- the
National Response Center (NRC).
Section 102 of CERCLA extended the
reporting requirement for releases equal
to or exceeding an RQ of a hazardous
substance by adding chemicals to the
list of hazardous substances, and by
extending the reporting requirement
(with certain exceptions) to any releases
to the environment, not just those to
waters of the United States.
Pursuant to section 311 of the CWA,
EPA determined reportable quantities
for discharges by correlating aquatic
animal toxicity ranges with 5 reporting
quantities, i.e., 1-, 10-; 100s 1000-, and
5000- pounds per 24 hour period levels.
Reportable quantity adjustments made
under CERCLA rely on a different
methodology. The strategy for adjusting
reportable quantities-begins with an
evaluation of the intrinsic physical,
chemical, and lexicological properties of
each designated hazardous substance.
The intrinsic properties examined,
called "primary criteria," are aquatic
toxicity, mammalian toxicity (oral.
dermal, and inhalation), ignitability,
reactivity, and chronic toxicity. lit
addition; substances that were
identified as potential carcinogens have
been evaluated for their relative activity
as potential carcinogens. Each intrinsic
property is ranked on a five-tier scale.
associating a specific range of values on
each scale with a particular reportable
quantity value. After the primary criteria
reportable quantities are assigned, the
hazardous substances are further
evaluated for their susceptibility to
certain extrinsic degradation processes
(secondary criteria). Secondary criteria
consider whether a substance degrades
relatively rapidly to a less harmful
compound, and can be used to raise the
primary criteria reportable quantity one
level.
Also pursuant to section 311, EPA has
developed a reportable quantity for oil
and associated reporting requirements
at 40 CFR part 110. These requirements,
known as the oil sheen regulation,
define the RQ for oil to be the amount of
oil that violates applicable water quality
standards or causes a film or sheen
upon or discoloration of the surface of
the water or adjoining shorelines or
causes a sludge or emulsion to be
deposited.
Reportable quantities developed
under the CWA and CERCLA were not
developed as effluent guideline
limitations which establish allowable
limits for pollutant discharges to surface
waters. Rather, a major purpose of the
notification requirements is to alert
government officials to releases of
hazardous substances that may require
rapid response to protect public health,
welfare, and the environment.
Notification based on reportable
quantities serves as a trigger for
informing the government of a release so
that the need for response can be
evaluated and any necessary response
undertaken in a timely fashion. The
reportable-quantities do not themselves
represent any determination that
releases, of a particular quantity are
actually harmful to public health,
.welfare, or the environment.
EPA requested comment on the use of
RQs for determining contamination in
discharges from oil and gas facilities. As
noted above numerous commenters
supported the concept of using
reportable quantities under certain
circumstances. Comments on the
measurement of oil sheens for the
purpose of triggering a permit
application were divided. Some
commented that it is much too stringent
because the amount of-oil creating a
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48032 Federal Register / Vol. 55. No. 222 / Friday, November 16, 1990 / Rules and Regulations
sheen may be a relatively small amount.
Others viewed the test as a quick, easy,
practical method that has been effective
in the past.
In relying on the reporting
requirements associated with releases in
excess of RQs for oil or hazardous
substances to trigger the submittal of
permit applications for oil and gas
operations, the Agency believes that the
use of the reporting requirements for oil
will be particularly useful. The Agency
believes that the release of oil to a storm
water discharge in amounts that cause
an oil sheen is a good indicator of the
potential for water quality impacts from
storm water releases from oil and gas
operations. In addition, given the
extremely high number of such
operations (the Agency estimates that
there are over 750,000 oil wells alone in
(he United States), relying on the oil
sheen test to determine if storm water
discharges from such sites are
"contaminated" will be a far easier test
for operators to determine whether to
file a storm water permit application
than a test based on sampling. The
detection of a sheen does not require
sophisticated instrumentation since a
sheen is easily perceived by visual
observation. EPA agrees with those
comments calling the oil sheen test an
appropriate measure for triggering a
storm water permit application. In
adopting this approach, EPA recognizes,
as pointed out by many commenters that
an oil sheen can be created with a
relatively small amount of oil.
One commenter suggested that
contamination must be caused by
contact with on-site material before
being subject to permit application
requirements. The Agency agrees with
this comment. Those facilities that have
had releases in excess of reportable
quantities will generally have
contamination from contact with on-site
material as described in the CWA. Thus,
use of the RQ test is an appropriate
trigger. As discussed above,
determination of whether contamination
;3 present to warrant issuance of a
permit will be made in the context of the
permit proceeding.
One commenter believed that the use
of RQs is inappropriate because "the
statute intended to exempt only oil and
•gas runoff that is not contaminated at
all." The Agency wishes to clarify that
reportable quantities are being used to
determine what facilities need to file
permit applications and to describe
what is meant by the term
"contaminated." The Director may
require a permit for any discharges of
storm water runoff contaminated by
contact with any overburden, raw
material, intermediate product, finished
product, by product or waste product at
the site of such operations. The use of
RQs is solely a mechanism for
identifying the facilities most likely to
need a storm water permit consistent
with the legislative history of section
402(1)(2).
c. Mining-Operations. The December
7,1988 proposal would establish
background levels as the standard used
to define when a storm water discharge
from a mining operation is
contaminated. When a storm water
discharge from a mining site was found
to contain pollutants at levels that
exceed background levels, the owner or
operator of the site was required to
submit a permit application for that
operation. The proposal was founded
upon language in the legislative history
stating that the determination of
whether storm water is contaminated by
contact with overburden, raw material,
intermediate product, finished product,
byproduct, or waste products "shall take
into consideration whether these
materials are present in such
stormwater runoff . . . above natural
background levels". [Vol. 132 Cong. Rec.
H10574 (daily ed. Oct. 15,1986)
Conference Report].
Comments received on this
component of the rule suggested that
background levels of pollutants would
be very difficult to calculate due to the
complex,topography frequently
encountered in alpine mining regions.
For example, if a mine is located in a
mountain valley surrounded on all sides
by hills, the site will have innumerable
slopes feeding flow towards it. Under
such circumstances, determining how
the background level is set would prove
impractical. Commenters indicated that
it is very difficult to measure or
determine background levels at sites
where mining has occurred for
prolonged periods. In many instances,
data on original background levels may
not be available due to long-term site
.activity. As a result, any background
level established will vary based on the
type and level of previous activity. In
addition, mining sites typically have
background levels that are naturally
distinct from the surrounding areas. This
is due to the geologic characteristics
that makes them valuable as mining
sites to begin with. This also makes it
difficult to establish accurate
background levels.
Because of these concerns EPA has
decided to drop the use of background
levels as a measure for determining
whether a permit application is required.
Accordingly, a permit application will
be required when discharges of storm
water runoff from mining operations
come into, contact with any overburden,
raw material, intermediate product,
finished product, byproduct, or waste
product located on the site. Similar to
the RQ test for oil and gas operations,
EPA intends to use the "contact" test
solely as a permit application trigger.
The determination of whether a mining
operation's runoff is contaminated will
be made in the context of the permit
issuance proceedings.
If the owner or operator determines
that no storm water runoff comes into
contact with overburden, raw material,
intermediate product, finished product,
byproduct, or waste products, then there
is no obligation to file a permit
application. This framework is
consistent with the statutory provisions
of section 402(1)(2) and is intended to
encourage each mining site to adopt the
best possible management controls to
prevent such contact.
Several commenters stated that EPA's
use of total pollutant loadings for
determining permit applicability is not
consistent with the general framework
of the NPDES program. Their concern is
that such evaluation criteria depart from
how the NPDES program has been
administered in the past, based on
concentration limits. In addition,
commenters requested that EPA clarify
that information on mass loading will be
used for determining the need for a
permit only. Since the analysis of
natural background levels as a basis for
a permit application has been dropped
from this rulemaking, these issues are
moot.
Commenters noted that the proposed
rule did not specify what impact this
rulemaking has on the storm water
exemptions in 40 CFR 440.131. The
commenters recommended not changing
any of these provisions. Some
commenters indicated that mining
facilities that have NPDES permits
should not be subject to additional
permitting under the storm water rule.
EPA does not intend that today's rule
have any effect on the conditional
exemptions in 40 CFR 440.131. Where a
facility has an overflow or excess
discharge of process-related effluent due
to stormwater runoff, the conditional
exemptions in 40 CFR 440.131 remain
available. .
Several commenters note that the
term overburden, as used in the context
of the proposed storm water rule, is not
defined and recommended that this term
should be defined to delineate the scope
of the regulation. EPA agrees that the
term overburden should be defined to
help properly define the scope the storm
water rule. In today's rule, the term
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Federal Register / Vol. 55. No. 222 / Friday. November 16. 1990 / Rules and Regulations 48033
overburden has been clarified to mean
any material of any nature overlying a
mineral deposit that is removed to gain
access to.that deposit, excluding topsoil
or similar naturally-occurring surface
materials that are not disturbed by
mining operations.,This definition is
patterned after the overburden
definition in SMCRA, and is designed to
exclude undisturbed lands from permit
coverage as industrial activity.
However, the definition provided in,this
regulation may be revised at a later
date, to achieve consistency with the
promulgation of RCRA Subtitle D mining
waste regulations in the future.
Numerous commenters raised issues
pertaining to the inclusion of inactive
mining areas as subject to the
stormwater rule. Some commenters
indicated that including inactive mine
operations in the rule would create an
unreasonable hardship on the industry.
EPA has included inactive mining areas
in today's rule because some mining
sites represent a significant source of
contaminated stormwater runoff. EPA
has clarified that inactive mining sites
are those that are no longer being
actively mined, but which have an
identifiable owner/operator. The rule
•also clarifies that active and inactive
mining sites do not include sites where
mining claims are being maintained
prior to disturbances associated with
the extraction, beneficiation, or
processing of mined materials, nor sites
where minimal activities required for
the sole purpose of maintaining the
mining claim are undertaken. The
Agency would clarify that claims on
land where there has been past
extraction, beneficiation, or processing
Of mining materials, but there is
currently no active mining are
considered inactive sites. However; in
Such cases the exclusion discussed
above for uncontamihated discharges
will still apply.
EPA's definition of active and inactive
mining operations also excludes those
areas which have been reclaimed under
SMCRA or, for non-coal mining
operations, under similar applicable
State or Federal laws. EPA believes
that, as a general matter, areas which
have undergone reclamation pursuant to
such laws have concluded all industrial
activity in such a way as to minimize
contact with overburden, mine products,
etc. EPA and NPDES States, of course,
retain the authority to designate
particular reclaimed areas for permit
coverage under section 402(p)(2)(E).
The proposed rule had included an
exemption for areas which have, been
reclaimed under. SMCRA. although the
language of the proposed rule.
inadvertently identified the wrong
universe ef coal mining areas. The final
rule language has-been revised to clarify
that areas which have been reclaimed
under .SMCRA (and thus are no longer
subject to 40 CPU part 434 subpart E) are
not subject to today's rule. Today's rule
thus is consistent with the coal mining
effluent guideline in its treatment of
areas reclaimed under SMCRA.
In response to comments, EPA has
also expanded this concept to exclude
from coverage as industrial activity non-
coal mines which are released from
similar State or Federal reclamation
requirements on or after the effective
date of this rule. EPA believes it is
appropriate, however, to require permit
coverage for contaminated runoff from
inactive non-coal mines which may have
been subject to reclamation regulations,
but which have been released from
those requirements prior to today's rule.
EPA does not have sufficient evidence
to suggest that each State i previous
reclamation rules and/or . ederal
requirements, if applicable, were
necessarily effective in controlling
future storm water contamination.
8. Application Requirements for
Construction Activities
As discussed above, EPA has
included storm water discharges from
activities involving construction
operations that result in the disturbance
of five acres total land hi the regulatory
definition of storm water discharges
associated with industrial activity.
This is a departure from the proposed
rule which required permit applications
for discharges from activities involving
construction operations that result in the
disturbance of less than one acre total
land area and (which are not part of a
larger common plan of development or
sale; or operations that are for single
family residential projects, including
duplexes, triplexes, or quadruplexes,
that result hi the disturbance of less
than five acre total land areas and
which are not part of a larger common
plan.of development or sale). The
reasons for this.change are noted below.
Many commenters representing
municipalities, States, and industry
requested that clearing, grading, and
excavation activities not be included in
the definition of storm water discharges
associated with industrial activity. It
was suggested that EPA delay including
construction activities until after the
studies mandated in section 402(p)(5) of
the CWA are completed. Other
commenters felt that NPDES permits are
not appropriate for construction
discharges due to their short term,
intermediate and seasonal nature.
Another.commenter felt that only the
construction, activities on the sites of the
industrial facilities identified in the
other subsections of the definition of
"associated with industrial activity''
should be included.
EPA believes that storm water permits
are appropriate for the construction
industry for several reasons.
Construction activity at a high level of
intensity is comparable to other activity
that is traditionally viewed as industrial.
such as natural resource extraction.
Construction that disturbs large tracts of
land will involve the use of heavy
equipment such as bulldozers, cranes,
and dump trucks. Construction activity
frequently employs dynamite and/or
other equipment to eliminate trees,
bedrock, rockwork, and to fill or level
land. Such activities also engage in the
installation of haul roads, drainage
systems, and holding ponds that are
typical of the industrial activity
identified in § 122.26(b)(14)(i-x). EPA
cannot reasonably place such activity in
the same category as light commercial
or retail business.
Further, the runoff generated while
construction activities are occurring has
potential for serious water quality
impacts and reflects an activity that is
industrial in nature. Where construction
activities are intensive, the localized
impacts of water quality may be severe
because of high unit loads of pollutants,
primarily sediments. Construction sites
can also generate other pollutants such
as phosphorus, nitrogen and nutrients
from fertilizer, pesticides, petroleum
products, construction chemicals and
solid wastes. These materials can be
toxic to aquatic organisms and degrade
water for drinking and water-contact
recreation. Sediment runoff rates from
construction sites are typically 10 to 20
times that of agricultural lands, with
runoff rates as high as 100 times that of
agricultural lands, and 1,000 to 2,000
times that of forest lands. Even small
construction sites may have a significant
negative impact on water quality in
localized areas. Over a short period of
time, construction sites can contribute
more sediment to streams than was
previously deposited over several
decades.
EPA is convinced that because of the
impacts of construction discharges that
are directly to waters of the United
States, such discharges should be
addressed by permits issued by Federal
or NPDES State permitting authorities. It
is evident from numerous studies and
reports submitted under section 319 of
the CWA that discharges from
construction sites continue to be a major
source of water quality problems and
water quality standard violations.
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48034 Federal Register / Vol. 55, No. 222 / Friday, November 16. 1990 / Rules and Regulations
Accordingly EPA is compelled to
address these source under these
regulations and thereby regulate these
sources under a nationally consistent
program with an appropriate level of
pnforcement and oversight.
Techniques to prevent or control
pollutants in storm water discharges
from construction are well developed
and understood. A primary control
technique is good site planning. A
combination of nonstructural and
structural best management practices
are typically used on construction sites.
Relatively inexpensive nonstructural
vegetative controls, such as seeding and
mulching, are effective control
techniques. In some cases, more
expensive structural controls may be
necessary, such as detention basins or
diversions. The most efficient controls
result when a comprehensive storm
water management system is in place.
Another reason that EPA has decided to
address this class of discharges is that it
is part of the Agency's recent emphasis
on pollution prevention. Studies such as
NURP indicate that it is much more cost
effective to develop measures to prevent
or reduce pollutants in storm water
during new development than it is to
correct there problems later on. Many of
these prevention and control practices,
which can take the form of grading
patterns as well as other controls,
generally remain in place after the
construction activities are completed.
a. Permit Application Requirements.
In today's rulemaking, EPA has set forth
distinct permit application requirements
for these construction activities, at
§ 122.26{c)(l)(ii), to be used where
general permits to be developed and
promulgated by EPA are inapplicable.
Such facilities will be required to
provide a map indicating the site's
location and the name of the receiving
water and a narrative description of:
• The nature of the construction
activity;
• The total area of the site and the
area of the site that is expected to
undergo excavation during the life of the
permit;
* Proposed measures, including best
management practices, to control
pollutants in storm water discharges
during construction, including a
description of applicable Federal
requirements and State or local erosion
and sediment control requirements;
* Proposed measures to control
pollutants in storm water discharges
that will occur after construction
operations have been completed,
including a description of applicable
State or local requirements, and
• An estimate of the runoff coefficient
(fraction of total rainfall that will appear
as runoff) of the site and the increase in
impervious area after the construction
addressed in the permit application is
completed, a description of the nature of
fill material and existing data describing
the so'il or the quality of the discharge.
Permit application requirements for
construction activities do not include the
submission of quantitative data. EPA
believes that the changing nature of
construction activities at a site to be
covered by the permit application
requirements generally would not be
adequately described by quantitative
data. The comments received by EPA
support this determination. One State
commented that a program they
instituted has been based on
quantitative data for the past 10 years
and has proven to be very awkward,
even unworkable.
Twenty commenters responded to the
issue of appropriate construction site'
application deadlines including: Three
towns (<100,000 population); one
medium municipality; one large
municipality; one agency associated
with a large municipality; three agencies
associated counties; three agencies
associated with States; two industries;
five industrial associations; and one
private organization representing
industry. The commenters primarily
focused on actual deadlines and
permitting authority response time.
Applicants for permits to discharge
storm water into the waters of the
United States from a construction site
would normally be required to submit
permits in the same time frame as new
sources and new discharges. This
rulemaking requires permit applications
from such sources to be submitted at
least 180 days prior to the date on which
the discharge is to commence. Four
commenters agreed with the application
deadline of 180 days prior to
commencement of discharge. Three
commenters felt it would be difficult to
apply 180 days prior to when the
discharge was to begin. Three
commenters recommended shortening
the time period to 90 days. Numerous
other commenters were concerned over
delays during the permitting authority's
review of the permit application. The
commenters requested that a maximum
response time be set in the regulation.
Suggested maximum response times
were 90 and 30 days.
In response to these, comments, EPA
has changed the application deadline for
construction permits from at least 180
days prior to discharge to at least 90
days prior to the date when construction
is to commence. This change reflects
EPA's recognition of the nature of
construction operations in that
developers/builders may not be aware
of projects 180 days before they are
scheduled to begin.
Numerous commenters expressed
concern over who should be responsible
for applying for the permit. Two
commenters felt the owner should be
responsible so that construction bid
documents can include the storm water
management requirements and to avoid
confusion among multiple
subcontractors. One commenter thought
that either the owner/developer, or
general contractor should be
responsible. Another commenter
suggested that the designer should
obtain the permit which would allow all
necessary erosion controls to be part of
the project plan. Several commenters
requested that the responsibility simply
be more clearly defined.
In response to these comments, EPA
would clarify that the operator will
generally be responsible for submitting
the permit application. Under existing
regulations at § 122.21(b), when a
facility is owned by one person but
operated by another, then it is the duty
of the operator to apply for the permit
Due to the temporary nature of
construction activities, EPA believes
that the operator is the most appropriate
person to be responsible for both short
and long term best management
practices included on the site. EPA
considers the term "operator" to include
a general contractor, who would
generally be familiar enough with the
site to prepare the application or to
ensure that the site would be in
compliance with the permit
requirements. General contractors, in
many cases, will often be on site
coordinating the operation among his/
her staff and any subcontractors.
Furthermore, the operator/general
contractor would be much more familiar
with construction site operations than
the owner and should be involved in the
site planning from its initial stages. The
application requirements in today's rule
are designed to provide flexibility in
developing controls to reduce pollutants
in storm water discharges from
construction sites. A significant aspect
to this is the role of State and local
authorities in control of construction
storm water discharges. Sixty-three
commenters addressed the question of
what the role of State and local
authorities should be. Most of these
commenters supported local government
control of construction discharges and
that qualified State programs should
satisfy Federal requirements.
Many commenters representing
municipalities, States, and industry, felt
that local government should have full
control over construction storm water
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Federal Register / Voi. 55. No. 222 / Friday, November 16, 1990 / Rules and Regulations 48035
discharges, either under existing
programs or those required by their
municipal permit. EPA agrees with these.
comments as far as discharges through
municipal storm sewers are concerned.
EPA is requiring municipalities that are
required to submit municipal permit
applications under this regulation to
describe their program for controlling
storm water discharges from
construction activities into their
separate storm sewers. It is. envisioned
that municipalities will have primary .
responsibility over these discharges
through NPDES municipal storm water
permits. However. EPA also plans to
cover such discharges under general
permits to be promulgated in the near
future. '
In response to several comments that
the regulation should provide flexibility
for qualified State programs to satisfy
Federal requirements, the application
requirements recognize that many States
have implemented erosion and sediment
control programs. The permit.
application requires a brief description
of these programs. This is intended to
ensure consistency between NPDES
permit requirements and other State
controls. Permit applicants will be in the
best position to pass on this site-specific
information to the permitting authority.
States or Federal NPDES authorities will
have the ability to exercise authority
over these discharges as will other State
and local authorities responsible for
construction. EPA envisions NPDES
permitting efforts will be coordinated
with any existing programs.
The proposed rule requested
comments on appropriate measures.to
reduce pollutants in construction site
runoff. Numerous cqmmenters
representing municipalities. States, and
industry responded. Some commenters
recommended specific best management
practices (BMPs) whereas others
suggested ways in which the measures
should be incorporated into the program.
One commenter suggested that EPA
establish design and performance:
standards for appropriate BMPs. One
State commenter recommended
requiring a schedule or sequence for use
of BMPs. A municipality suggested
developing guidance on erosion control
,a.t construction sites and disseminating
the guidance to educate contractors and
construction workers in proper erosion
control techniques. The Agency is
continuing to review these-
.recommendations for the purposes, of
permit development and issuance.
Another commenter suggested that
further research be done to determine
the effectiveness of particular BMPs in
reducing pollutants in construction site
runoff. EPA agrees that more research
and studies can be undertaken to
develop'methodologies for more
effective storm water controls and will
continue to lookat these concerns
pursuant to section 402(p){5) studies.
However, EPA is convinced that enough
information, technology, and proven
BMP's are available to address these
discharges in this regulation.
Specific BMPs suggested by the
commenters include: wheel washing;
locked exit roadways, street cleaning
methods which exclude sheet washing;
clearing and grading codes; construction
standards; riparian corridors; solids
retention basins; soil erosion barriers;
selected excavation; adequate collection
systems; vegetate disturbed areas;
proper application of fertilizers; proper
equipment storage; use of straw bales
and filter fabrics; and use of diversions
to reduce effective length of slopes. EPA
is continuing to evaluate these
suggestions for developing appropriate
permit conditions for construction
activity.
b. Administrative Burdens, Many
commenters representing municipalities,
States, and industry commented on the
administrative burdens of individually
permitting each construction site
discharging to waters of the United
States. The extensive use of general
permits for storm water discharges from
construction activities that are subject
to NPDES requirements is anticipated to
minimize administrative delays
associated with permit issuance. Many
commenters strongly endorsed
extensive use of general permits. In
addition the Agency will provide as
much assistance as possible for
developing appropriate permit
conditions.
Many commenters responded to the
use of acreage limits in-determining
which construction sites are. required to
submit a permit application, including
several cities, counties and States. Some
commenters generally supported the use
of an acre limit Many commenters
suggested increasing the acreage limit
Several suggested using a five acre limit
for bo.th residential and nonresidentiai
development Others suggested greater
acreage as the cutoff. Two commenters
concurred with the proposed limit of one
acre/five acres and one commenter
suggested towering the residential limit.
to one acre.
Other factors.were suggested as. a
. means to create a cutoff for requiring
permit applications.-Several commenters
suggested exempting construction that
would be completed with-a certain time
frame, such as.construction .of less than
12 months. EPA believes that this is
inappropriate because some
construction can be intensive and
expansive, but nonetheless take place
over a short period of time, such as a
parking lot. One commenter suggested
basing the limit on the quantity of soil
moved, i.e.. cubic yards. In response,
this approach would not be particularly
helpful since removal of soil will not
necessarily relate to the amount of land
surface disturbed and exposed to-the
elements. Another commenter-suggested
that where there is single family
detached housing construction thai
should trigger applications as well as
the proposed acreage limit. This would
not be appropriate since EPA is
attempting to focus only on those
construction activities that resemble
industrial activity. After considering
these and similar comments EPA has
limited the definition of "storm water
discharge associated with industrial
activity" by exempting from the
definition those construction operations
that result in the disturbance of less
than five acres of total land area which
are not part of a larger common plan of
development or sale. In considering the
appropriate scope of the definition of
storm water discharge associated with
industrial activity as it relates to
construction activities, EPA recognized
that a wide variety of factors can affect
the water quality impacts associated
with construction site runoff, including
the quality of receiving waters, the size
of .the area disturbed, soil conditions,
seasonal rainfall patterns, the slope of
area disturbed, and the intensity of
construction activities. These factors
will be considered by the permit writer
when issuing the permit However, as
noted above, EPA views such site-
specific factors to be too difficult to
define in a regulatory framework that is
national in scope. For example,
attempting to adjust permit application
triggers based upon a myriad of regional
rainfall patterns, is not a practical
solution. However, permit conditions
adjusted for specific geographical areas
may.be appropriate.
Under the December 7,1988. proposal
the definition of industrial activity
exempted: construction, operations that
resulted in the disturbance of less than
.one acre total land area which was not
part of a larger common, plan of
development or sale; or .operations for-
single family residential projects,
including duplexes, triplexes, or
quadruplets, that result in the
disturbance of less than five acre total
land areas which were -not part of a
larger .common plan of development or
sale. EPA distinguished .between single
-family, residential development and
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48038 Federal Register / Vol. 55. No. 222 / Friday, November 16, 1990 / Rules and Regulations
other commercial development because
other commercial development is more
likely to occur in more densely
developed areas. Also, it was reasoned
that other commercial development
provides a more complete opportunity to
develop controls that remain in place
after the construction activity is
completed( since continued maintenance
after the permit has expired, is more
feasible.
However^EPA has decided to depart
from the proposal and use an
unqualified five acre area in today's
final rule. This limit has been selected,
in part, because of administrative
concerns. EPA recognizes that State and
local sediment and erosion controls may
address construction activities
disturbing less five acres for residential
development; the five acre limit in
today's rule is not intended to supersede
more stringent State or local sediment
and erosion controls. In light of the
comments, EPA is convinced that the
acreage limit is appropriate for
identifying sites that are amount to
industrial activity. Several comments
suggested higher acreage limits without
giving a supporting rationale except
administrative concerns. Several
commcntcrs agreed that the five acre
limit is suitable, but again without
specifying why they agreed. EPA is
convinced, however, that the acreage
limits as finalized in today's rule reflect
an earth disturbance and/or removal
effort that is industrial in magnitude.
Disturbances on large tracts of land will
employ more heavy machinery and
industrial equipment for removing
vegetation and bedrock.
For construction facilities that are not
included In the definition of storm water
discharge associated with industrial
activity, EPA will consider the
•appropriate procedures and methods to
reduce pollutants in construction site
runoff under the studies authorized by
section 402(p)(5) of the CWA. EPA will
also consider under section 402{p)(5)
appropriate procedures and methods
during post-construction for maintaining
structural controls developed pursuant
to NPDES permits issued for storm
water discharges associated with
industrial activity from construction
sites.
Numerous commenters requested
clarification as to whether permits for
storm water discharges from
construction activities at an industrial
facility are required. EPA is requiring
permits for all storm water discharges
from construction activities where the
land disturbed meets the requirements
established in § 122,26(b)(14)(x) and
which discharge into waters of the
United States. The location of the
construction activity or the ultimate
land use at the site does not factor into
the analysis.
G. Municipal Separate Storm Sewer
Systems
1. Municipal Separate Storm Sewers
Today's rule defines "municipal
separate storm sewer" at § 122.26(b)(8)
to include any conveyance or system of
conveyances that is owned or operated
by a State or local government entity
and is designed for collecting and
conveying storm water which is not part
of a Publicly Owned Treatment Works
(POTW) as defined at 40 CFR 122.2. It is
important to note that today's permit
application requirements for discharges
from municipal separate storm sewer
systems serving a population of 100,000
or more do not apply to discharges from
combined sewers (systems designed as
both a sanitary sewer and a storm
sewer). For purposes of calculating
whether a municipal separate storm
sewer system meets the large or medium
population criteria, a municipality may
petition to have the population served
by a combined sewer deducted from the
total population. Sectioa 122.26(f) of
today's rule describes this procedure.
EPA requested comments on whether
different language for the definition of
municipal separate storm sewer would
clarify responsibility under the NPDES
permit system. Comments were also
requested on whether the definition
needed to be clarified by explicitly
stating that municipal streets and roads
with drainage systems (curb and gutter,
ditches, etc.) are part of the municipal
storm sewer system, and that the
owners or operators of such roads are
responsible for such discharges.
Numerous comments were received by
EPA on this issue. Some commenters
questioned whether road culverts and
road ditches were municipal separate
storm sewers, while others specifically
recommended that further clarifying
language should be added so that
owners and operators of roads and
streets understand that they are covered
by this regulation. In light of these
comments, EPA has clarified that
municipal streets, catch basins, curbs,
gutters, ditches, man-made channels, or
storm drains that discharge into the
waters of the United States are
municipal separate storm sewers. One
commenter asked if "other wastes" in
the proposed definition of municipal
separate storm sewer (40 CFR 122.26
(b)(8)(i)) included storm water. In'
response, EPA has added "storm water"
to this definition in order to clarify that
the rule addresses such systems.
EPA requested comments on whether
legal classifications such as "storm
sewers that are not private (e.g. public,
district or joint district sewers)" would
provide a clearer definition of municipal
separate storm sewer than an owner or
operator criterion, especially for the
purpose of determining responsibility
under the NPDES program. Most
commenters agreed that the owner/
operator concept, and the additional
language noted above, is sufficient for
this purpose. EPA also requested
comments on to what extent the owner/
operator concept should apply to
municipal governments with land-use
authority over lands which contribute
storm water runoff to the municipal
storm sewer system, and how the
responsibility should be clarified. In
response to comments on this point,
EPA has addressed these concerns in
the context of clarifying what municipal
entities are responsible for applying for
a permit covering storm water
discharges from municipal systems in
section VI.H. below.
One commenter expressed a desire for
clarification as to whether conveyances
that were once used for the conveyance
of storm water, but are no longer used in
that manner, are covered by the
definition. EPA emphasizes that this
rulemaking only addresses conveyances
that are part of a separate storm sewer
system that discharges storm water into
waters of the United States.
One commenter stated that if EPA
intends to regulate roadside collection
systems then EPA must repropose since
these were not considered by the public.
EPA disagrees with this comment since
one of the options specifically addressed
the inclusion of roadside drainage
systems and roads in the definition of
municipal separate storm sewer system.
In addition, the public recognized the
issue in comments on the proposal. EPA
would note that several commenters
specifically endorsed EPA's inclusion of
these conveyances.
2. Effective Prohibition on Non-Storm
Water Discharges
Section 402(p)(3)(B)(ii) of the amended
CWA requires that permits for
discharges from municipal storm setoers
shall include a requirement to
effectively prohibit non-storm water
discharges into the storm sewers. Based
on the legislative history of section 405
of the WQA, EPA does not interpret the
effective prohibition on non-storm water
discharges to municipal separate storm
sewers to apply to discharges that are
not composed entirely of storm water,
as long as such discharge has been
issued a separate NPDES permit. Rather,
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Federal Register / Vol. 55, No. 222 / Friday, November 16, 1990 / Rules and Regulations . 48037
an- "effective prohibition" would require
separate NPDES permits for non-storm
water discharges to municipal storm
sewers. In many cases in the past,
applicants for NPDES permits for
process wastewaters and other non-
storm water discharges have been
granted approval to discharge into
municipal separate storm sewers,
provided thatthe permit conditions for
the discharge are met at the point where
the discharge enters into the separate
storm sewer. Permits for such discharges
must meet applicable technology-based
and water-quality based requirements of
Sections 402 and 301 of the CWA. If the
permit for a non-storm water discharge
to a municipal separate storm sewer
contains water-quality based
limitations, then such limitations should
generally be based on meeting
applicable water quality standards at
the boundary of a State established
mixing zone [for States with mixing
zones) located in the receiving waters of
the United States.
All options will be considered when
an "applicant applies for a NPDES permit
for a non-storm water discharge to a
municipal separate storm sewer. In
some cases, permits will be denied for
discharges to storm sewers that are
causing water quality problems in
receiving waters. However, not all
discharges present such problems; and
in these cases EPA or State permit
writers may allow such discharges to
municipal separate storm sewers within
appropriate permit limits.
Today's rule has two permit
application requirements that are
designed to begin implementation of the
effective prohibition. The first
requirement discussed in VI.H.6.a.,
below, addresses a screening analysis
which is intended to provide sufficient
information to develop priorities for a
program to detect and remove illicit
discharges. The second provision,
discussed in VI.H.7.b., requires
municipal applicants to develop a
recommended site-specific management
plan to detect and remove illicit
discharges (or ensure they are covered
by an NPDES permit) and to control
improper disposal to municipal separate
storm sewer systems.
Several commenters suggested that
either the definition of "storm water"
should include some additional classes
of nonprecipitation sources, or that
municipalities should not be held
responsible for "effectively prohibiting"
some classes of nonstorm water
discharges into their municipal storm
sewers. The various types of discharges
addressed by these comments include
detention and retention reservoir
releases, water line flushing, fire
hydrant flushing, runoff from fire
fighting, swimming pool drainaqe and
discharge, landscape irrigation, diverted
stream flows, uncontaminated pumped
ground water, rising ground water,
discharges from potable water sources,
uncontaminated waters from cooling
towers, .foundation drains, non-contact
cooling water (such as heating,
ventilation, air conditioning (HVAC)
water that POTWs require td'be
discharged to separate storm sewers
rather than sanitary sewers), irrigation
water, springs, roofdrains, water from
crawl space pumps, footing drains, lawn
watering, individual car washing, flows
from riparian habitats and wetlands.
Most of these comments were made
with regard to the concern that these
were commonly occurring discharges
which did not pose.significant
environmental problems.
EPA disagrees that the above
described flows will not pose, in every
case, significant environmental
problems. At the same time, it is
unlikely Congress intended to require
municipalities to effectively prohibit
individual car washing or discharges
resulting from efforts to extinguish a
building fire and other seemingly
innocent flows that are characteristic of
human existence in urban environments
and which discharge to municipal
separate storm sewers. It should be
noted that the legislative history is
essentially silent on this point.
Accordingly, EPA is clarifying that
section 402(p)(3)(B) of the CWA (which
requires permits for municipal separate
storm sewers to 'effectively' prohibit
non-storm water discharges) does not
require permits for municipalities to
prohibit certain discharges or flows of
nonstorm water to waters of the United
States through municipal separate storm
sewers in all cases. Accordingly,
§ 122.26(d)(2)(iv)(B)(l) states that the
proposed management program shall
include: "A description of a program,
including inspections, to implement and
enforce an ordinance, orders or similar
means to prevent illicit discharges to the
municipal separate storm .sewer system;
the program description shall address
the following categories of non-storm
water discharges or flows only where
such discharges are identified by the
municipality as sources of pollutants to
waters of the United States: Water line
flushing, landscape irrigation, diverted
stream flows, rising ground waters,
uncontaminated ground water
infiltration (as defined at 40 CFR
35.2005(20)) to separate storm sewers,
uncontaminated pumped ground water
discharges from potable water sources,
foundation drains, air conditioning
condensation, irrigation water, springs,
water from crawl- space pumps, footing
drains, lawn watering, individual
residential car washing, flows from
riparian habitats and wetlands,
dechlorinated swimming pool
discharges, and street wash waters.
Program descriptions shall address
discharges from fire fighting only whare
such discharges or flows are identified
as significant sources of pollutants to
waters of the United States."
However, the Director may include
permit conditions that either require
municipalities to prohibit or otherwise
control any of these types of discharges
where appropriate. In the case of fire
fighting it is not the intention of these
rules to prohibit in any circumstances
the protection of life and public or
private property through the use of
water or other fire retardants that flow
into separate storm sewers. However,
there may be instances where specified
management practices are appropriate
where these flows do occur (controlled
blazes are one example).
Conveyances which continue to
accept other "non-storm water"
discharges (e.g. discharges without an
NPDES permit) with the exceptions
noted above do not meet the definition
of municipal separate storm sewer and
are not subject to section 402(p)(3)(B) of
the CWA unless the non-storm water
discharges are issued separate NPDES
permits. Instead, conveyances which
continue to accept non-storm water
discharges which have not been issued
separate NPDES permits are subject to
sections 301 and 402 of the CWA. For
example, combined sewers which
convey storm water and sanitary
sewage are not separate storm sewers
and must comply with permit
application requirements at 40 CFR
122.21 as well as other regulatory
criteria for combined sewers.
3. Site-Specific Storm Water Quality
Management Programs for Municipal
Systems
Section 402(p)(3)(iii) of the CWA
mandates that permits for discharges
from municipal separate storm sewers
shall require controls to reduce the
discharge of pollutants to the maximum
extent practicable (MEP), including
management practices, control
techniques and systems, design and
engineering methods, and such other
provisions as the Director determines
appropriate for the control of such
pollutants.
When enacting this provision,
Congress was aware of the difficulties in
regulating discharges from municipal
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48038 Federal Register / Vol. 55, No. 222 / Friday, November 16, 1990 / Rules and Regulations
separate storm sewers solely through
traditional end-of-pipe treatment and
intended for EPA and NPDES States to
develop permit requirements that were
much broader in nature than
requirements which are traditionally
found in NPOES permits for industrial
process discharges or POTWs. The
legislative history indicates, municipal
storm sewer system "permits will not
necessarily be like industrial discharge
permits. Often, an end-of-the-pipe
treatment technology is not appropriate
for this type of discharge." [Vol. 132
Cong. Roe. S1642S (daily ed. Oct. 16,
1988)].
A shift towards comprehensive storm
water quality management programs to
reduce the discharge of pollutants from
municipal separate storm sewer systems
Is appropriate for a number of reasons.
First, discharges from municipal storm
sewers are highly intermittent, and are
usually characterized by very high flows
occurring over relatively short time
Intervals. For this reason, municipal
storm sewer systems are usually
designed with an extremely high number
of outfalls within a given municipality to
reduce potential flooding. Traditional
end-of-pipe controls are limited by the
materials management problems that
arise with high volume, intermittent
flows occurring at a large number of
outfalls. Second, the nature and extent
of pollutants in discharge's from
municipal systems will depend on the
activities occurring on the lands which
contribute runoff to the system.
Municipal separate storm sewers tend to
discharge runoff drained from lands
used for a wide variety of activities.
Given the material management
problems associated with end-of-pipe
controls, management programs that are
directed at pollutant sources are often
more practical than relying solely on
end-of-pipe controls.
In past rulemakings, much of the
criticism of the concept of subjecting
discharges from municipal separate
storm sewers to the NPDES permit
program focused on the perception that
the rigid regulatory program applied to
industrial process waters and effluents
from publicly owned treatment works
was not appropriate for the site-specific
nature of the sources which are
responsible for the discharge of
pollutants from municipal storm sewers.
The water quality impacts of
discharges from municipal separate
storm sewer systems depend on a wide
range of factors including: The
magnitude and duration of rainfall
events, the time period between events,
soil conditions, the fraction of land that
is impervious to rainfall, land use
activities, the presence of illicit
connections, and the ratio of the storm
water discharge to receiving water flow.
In enacting section 405 of the WQA,
Congress recognized that permit
requirements for municipal separate
storm sewer systems should be
developed in a flexible manner to allow
site-specific permit conditions to reflect
the wide range of impacts that can be
associated with these discharges. The
legislative history accompanying the
provision explained that "[p]ermits for
discharges,from municipal separate
stormwater systems * * * must include
a requirement to effectively prohibit
non-stormwater discharges into storm
sewers and controls to reduce the
discharge of pollutants to the maximum
extent practicable, * * * These
controls may be different in different
permits. All types of controls listed in
subsection [(p)(3)(C)] are not required to
be incorporated into each permit" [Vol.
132 Cong. Rec. HI0576 (daily ed. October
15,1986) Conference Report]. Consistent
with the intent of Congress, this rule sets
out permit application requirements that
are sufficiently flexible to allow the
development of site-specific permit
conditions.
Several commenters agreed with this
approach. One municipality
recommended that there be as much
flexibility as possible so that the
permitting authority can work with each-
municipality in developing meaningful
long-term goals with plans for improving
storm water quality. This commenter
noted that too many specific regulations
that apply nationwide do not take into
consideration the climatic and
governmental differences within the
States. EPA agrees that as much
flexibility as possible should be
incorporated into the program. However,
flexibility should not be built into the
program to such an extent that all
municipalities do not face essentially
the same responsibilities and
commitment for achieving the goals of
the CWA. EPA believes that these final
regulations build in substantial
flexibility in designing programs that
meet particular needs, without
abandoning a nationally consistent
structure designed to create storm water
control programs.
4. Large and Medium Municipal Storm
Sewer Systems
During the 1987 reauthorization of the
CWA, Congress established a
framework for EPA to implement a
permit program for municipal separate
storm sewers and establishing phased
deadlines for its implementation. The
amended CWA establishes priorities for
EPA to develop permit application
requirements and issue permits for
discharges from three classes of
municipal separate storm sewer
systems. The CWA requires that NPDES
permits be issued for discharges from
large municipal separate storm sewer
systems (systems serving a population
of more than 250,000) by no later than
February 4,1991. Permits for discharges
from medium municipal separate storm
sewer systems (systems serving a
population of more than 100,000, but less
than 250,000) must be issued by
February 4,1992. After October i, 1992,
the requirements of sections 301 and 402
of the CWA are restored for all other
discharges from municipal separate
storm sewers.
The priorities established in the Act
are based on the size of the population
served by the system. Municipal
operators of these systems are generally
thought to be more capable of initiating
storm water programs and discharges
from municipal separate storm sewers
serving larger populations are thought to
present a higher potential for
contributing to adverse water quality
impacts. NURP and ojher studies have
verified that the event mean
concentration of pollutants in urban
runoff from residential and commercial
areas remains relatively constant from
one area to another, indicating that
pollutant loads from urban runoff
strongly depend on the total area and
imperviousness of developed land,
which in turn is related to population.
The term "municipal separate storm
sewer system" is not defined by the Act.
By not defining the term, Congress
intended to provide EPA discretion to
define the scope of municipal systems
consistent with the objectives of
developing site-specific management
programs in NPDES permits. EPA
considered two key issues in defining
the scope of municipal separate storm
sewer system: (1) What is a reasonable
definition of the term "system," and (2)
how to determine the number of people
"served" fay a storm sewer system. EPA
found these two issues to be
intertwined. Different approaches to
defining the scope of a system allowed
fo'r greater or-lesser certainty in
deterining the population served by the
system.
In the December 7,1988, proposal,
EPA described seven options for
defining "municipal separate storm
sewer system." In developing these
options the EPA considered:
• The inter-jurisdiction complexities
associated with municipal governments;
• The fact that many municipal storm
water management programs have
traditionally focused on water quantity
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Federal Register / Vol. 55, No. 222 / Friday. November 16, 1990 / Rules and Regulations 48039
concerns, and have not evaluated water
quality impacts of system discharges or
developed measures to reduce
pollutants in such discharges;
• The advantages of developing
system-wide storm water management
programs for municipal systems;
• The geographic basis necessary for
planning of comprehensive management
programs to reduce pollutants in
discharges from municipal separate
storm sewers to the maximum extent
practicable;
• The geographic basis necessary to
provide flexibility to target controls on
areas where water quality impacts
associated with discharges from
municipal systems are the greatest and
to provide an opportunity to develop
cost effective controls;
• The need to establish a reasonable
number of permits for municipal systems
during the initial phases of program
development that wiH provide an
adequate basis for a storm water quality
management program for over 13,000
municipalities after the October 1,1992
general prohibition on storm water
permits expires; and
• Congressional intent te allow the
development of jurisdiction-wide,
comprehensive storm water
management programs with priorities
given to the most heavily populated
areas of the country.
a. Overview of Proposed Options and
Comments. The December 7,1988,
proposal requested comment on seven
options for defining large and medium
municipal separate storm sewer 'system.
With the addition of a watershed-based
approach suggested by certain
commenters, eight options or
approaches were addressed by the over
200 commenters on this issue: Option
1—systems owned or operated by
incorporated places augmented by
integrated discharges; Option 2—
systems owned or operated by
incorporated places augmented with
significant other municipal discharges;
Option 3—systems owned or operated
by counties; Option 4—systems owned
and operated by States or State
departments of transportation; Option
5—systems within the boundaries of an
incorporated place; Option 6—systems
within the boundaries of counties;
Option 7—systems in census designated
urbanized areas; and Option 8—systems
defined by watershed boundaries.
Generally, these options can be
classified into two categories. The first
category of options, Options 1, 2 and 3,
define municipal systems in terms of the
municipal entity which owns or operates
storm sewers within municipal
boundaries of the requisite population.
The second category of options would
define municipal systems on a
•geographic basis. Under Options 4, 5, 6,
7 and 8 all municipal separate storm
sewers within the specified geographic
area would be part of the municipal
system, regardless of which municipal
entity owns or operates the storm sewer.
EPA did not-propose to define the scope
of a municipal separate storm sewer
system in engineering terms because of
practical problems determining the
boundaries of and the populations
served by "systems" defined in such a
manner. In addition an engineering
approach based on physical
interconnections of storm sewer pipes
by itself does not provide a rational
basis for developing a storm water
program to improve water quality where
a large number of individual storm
water catchments are found within a
municipality.
In the December 7,1988, proposal,
EPA favored those options that relied
primarily on the municipal entity which
owns or operates or otherwise has
jurisdiction over storm sewers. These
options were preferred because it was
anticipated that the administrative
complexities of developing the permit
programs would be reduced by
decreasing the number of affected
municipal entities. However, most
commenters were not satisfied that such
an^approach would reduce
administrative burdens or complexities.
The diversity of arguments and
rationales offered in comments
justifying the selection of particular
option, or combinations thereof, were
generally a function of geographic,
climatic, and institutional differences
around the country. As such, there was
little substantive agreement with how
this program should be implemented as
far as defining large and medium
municipal separate storm sewer •
systems. Of all the options, Option 1
generally received the most favorable
comment. However, the overwhelming
majority of comments suggested
different options or other alternatives.
Having reviewed the comments at
length,'EPA is convinced that the
definition of municipal separate storm
sewers should possess elements of
several of the options enumerated above
and a mechanism that enables States or
EPA Regions to define a system that
best suits their various political and
geographical conditions.
The following comments were the
most pervasive, and represent those
issues and concerns of greatest
importance to the public: (1) The
approach chosen initially must be
realistic and achievable
administratively; (2) the definition must
be flexible enough 'to accommodate
development of the program on a
watershed basis, and incorporate
elements of existing programs and
frameworks and regional differences in
climate, geography, and political
institutions; (3) permittees must have
legal authority and control over land
use; (4) discharges from State highways,
identified as a significant source of
runoff and pollutants, should be
included in the program and combined
in some manner with one or more of the
other options; (5) the definition should
address how the inclusion of
interrelated discharges into the
municipal separate storm sewer system
are timed, decided upon, dealt with, etc.;
(6) any approach must address the
major sources of pollutants; (7)
development of co-permittee
management plans must be coordinated
or developed on a regional basis and in
the same time frame—fragmented or
balkanized programs must be avoided;
(8) municipalities should be regulated as
equitably--as-possible; (9) flood control
districts should be addressed as a
system or part of a system; (10) the
definition must conform to the legal
requirements of the Clean Water Act;
and (ll) the definition should limit the
number of co-permittees as much as
possible.
b. Definition of large and medium
municipal separate storm sewer system.
A combination of the options outlined in
the 1988 proposal would address most of
these concerns, while achieving a
realistic and environmentally beneficial
storm water program. Accordingly, EPA
has adopted the following definition of
large and medium municipal separate
storm sewer systems. Large and medium
separate storm sewer systems are
municipal separate storm sewers that:
(i) Are located in an incorporated
place with a population of 100,000 or
more or 250,000 or more as determined
by the latest Decennial Census by the
Bureau of Census (see appendices F and
G of part 122 for a list of these places
based on the 1980 Census);
(ii) Are located within counties having
areas that are designated as urbanized
areas by latest decennial Bureau of
Census estimates and where the
population of such areas exceeds
100,000, after the population in the
incorporated places, townships or towns
within such counties is excluded (see
appendices H and I for a listing of these
counties based on the 1980 census)
(incorporated places, towns, and
townships within these counties are
excluded from permit application
requirements unless they fall under
paragraph (i) or are designated under
paragraph (iii)}; or (iii) are owned or
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4M40 Federal Register / Vol. 55, No. 222 / Friday. November 16. 1990 / Rules and Regulations
operated by a municipality other than
those described in paragraph (i) or (ii)
that are designated by the Director as
part of the large or medium municipal
separate storm sewer system due to the
interrelationship between the discharges
of the designated storm sewer and the
discharges from municipal separate
slorm sewers described under
paragraphs (i) or (ii). In making this
determination the Director may consider
the following factors:
(A) Physical interconnections
between the municipal separate storm
sewers;
(B) The location of discharges from
the designated municipal separate storm
sewer relative to discharges from
municipal separate storm sewers
described in subparagraph (i);
(C) The quantity and nature of
pollutants discharged to waters of the
United States;
(D) The nature of the receiving waters;
or
(E) Other relevant factors.
(iv) The Director may, upon petition,
designate as a system, any municipal
separate storm sewers located within
the boundaries of a region defined by a
storm water management regional
authority based on a jurisdictional,
watershed, or other appropriate basis
that includes one or more of the systems
described in paragraphs (i), (ii), and (iii).
Under today's rule at § 122.26(a)(3)(iii)
the regional authority shall be
responsible for submitting a permit
application under the following
guidelines: The regional authority
together with co-applicants shall have
authority over a storm water
management program that is in
existence, or shall be in existence at the
time part 1 of the application is due; the
permit applicant or co-applicants shall
establish their ability to make a timely
submission of part 1 and part 2 of the
municipal application; each of the
operators of municipal separate storm
systems described in paragraphs .
122,26(b)(4) (i), (ii). and (iii) and (7)(i),
(ii), and (iii). that are under the purview
of the designated regional authority,
shall comply with the application
requirements of § 122.26(d).
As noted above, the finalized
definition of large and medium
municipal separate storm sewer system
is combination of the approaches as
proposed. (In the following discussion
"paragraph (i)" refers to §§ 122.26
(b)(4)(5) and (b)(7)(i); "paragraph (ii)"
refers to §| 122^6(b}(4)(ii) and (b)(7)(ii);
"paragraph (iii)" refers to §§ 122.26
(b)(4)(iii) and (b)(7)(iii); and "paragraph
(iv)" refers to §§ 122.26 (b)(4)(iv) and
(b)(7j(iv)). Paragraph (i) originates from .
proposed Option 5 (boundaries of
incorporated places); paragraph (ii)
originates from Option 6 (boundaries of
counties) and Option 7 (urbanized
areas); paragraph (iii) originates from
Options 1 and 5; and paragraph (iv) is an
outgrowth of comments on all options,
especially Option 4 (State owned
systems/State highways) and Option 8
(watersheds). ~"
This definition creates a system by
virtue of the fact that storm sewers
within defined geographical and
political areas, and the owner/operators
of separate storm sewers in those areas,
are addressed or required to obtain
permits. Although within these systems,
different segments and discharges of
storm water conveyances may be
owned or operated by different public
entities, EPA is convinced by comments
that discharges from such conveyances
are interrelated to such an extent that
all of these conveyances may be
properly considered a "system." These
comments are identified and discussed
in greater detail below.
c. Response to comments. Many
commenters urged that the approach
taken must be administratively
achievable. Option 5 of the proposal
(boundaries of incorporated places),
which can be equated to paragraphs (i)
and (iii)-above, was identified by
several commenters as the most
workable of all the options. Many
commenters stated that Option 1
(systems owned or operated by
incorporated places) was inappropriate
because of special districts and other
owners of systems within the
incorporated area; and although EPA
proposed a designation provision for
interrelated discharges in Option 1,
commenters advised that it would be
impossible to identify these systems,
account for their discharges, and
exclude or include them in a timely
manner if Option 1 was selected (Option
1 only addresses those systems owned
or operated by the incorporated place).
The final rule would obviate these
concerns, since all the publicly owned
sewers within the boundaries of the
municipality will be required to be
covered by a permit.
Other commenters noted that cities
sometimes have storm water
conveyances owned or operated by
numerous.entities. One municipality
commented that these problems could
be more easily resolved using a unified
permit/district wide approach, which
the final approach outlined above can
accomplish. One county stated that
Option 1 of the proposal would result in
a permanent balkanization of
stormwater programs, and that a
regional approach focusing on the entire
system should be established. Another
municipality recommended that all the
systems of conveyances within the
incorporated city boundaries be issued a
permit. In rejecting Option 1 of the
proposal, one municipality stated that
program inefficiencies would result from
implementing a piecemeal program in a
contiguous urban environment with
different owners and operators. One
State conveyed similar concerns. Using
a geographical approach, as described in
paragraph (i) of the final definition, will
best address all of these concerns.
One commenter criticized proposed
Option 1 as being contrary to the legal
requirements of the WQA, and a further
example of EPA's continuing attempt to
minimize the scope of a national storm
water program. It was noted that the
legislative history regarding
requirements for large and medium
' municipal separate storm sewer systems
in section 402(p) of the CWA generally
does not reference incorporated cities or
towns. As a result, the commenter
recommended that the term "municipal"
in municipal separate storm sewer
system refer to separate storm sewers
operated.by municipal entities meeting
the definition oif "municipality"-in
section 502 of the CWA and that the
scope of the term "municipal separate
storm sewer system" be defined as
broadly as possible. This approach
would result in defining large and
medium municipal separate storm sewer
systems to include all municipal
separate storm sewers within the 410
counties with a population of 100,000 or
more. EPA has adopted the commenter's
recommendation to extend the scope of
the program to the extent that today's
rule covers all municipal separate storm
sewers within certain areas rather than
only those operated by an incorporated
place. EPA disagrees however that it •
must define the term "system" to
include sewers within any municipal
boundary of sufficient population with
reference to section .502(4). By not
providing explicit definitions, section
402(p)(3)(B) of the CWA gives EPA
discretion to define how municipal
separate storm sewer systems are
defined. There is no indication in the
language-of the CWA or the legislative
history that Congress intended that the
scope of "municipality" and the scope of
"municipal separate storm sewer
system" to be identical, particularly
since the latter term is not defined in the
statute.'Furthermore, for the reasons
discussed elsewhere in this section, EPA
believes that today's definition is a
reasonable accommodation of the many
conflicting concerns surrounding the
proper way to delineate-the extent of a
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Federal Register / Vol. 55. No. 222 / Friday^ November 16. 1990 / Rules and Regulations 48041
municipal separate storm sewer system
serving over 100,000 people.
Several commenters concluded that
EPA should be flexible enough to allow
the permitting authority broad discretion
to establish system wide permits, with
flood control districts and/or counties
acting as co-permittees with the various
incorporated cities within the district .
boundaries. Commenters expressed
concern that Option 1 would not allow
for such flexibility.
Arguments that were advanced by
commenters in support of proposed
Option 1 are equally applicable to
paragraph (i), above. Like proposed
Option 1, the approach outlined above
targets major cities. However, it also has
the advantage of addressing municipal
separate storm sewer systems which
may be interrelated to those owned by
the city, a benefit recognized by one
municipality that endorsed the selection
of proposed Option 5. This will also give
the permitting authority more discretion
to establish co-permittee relationships.
Paragraph (ii) of the final definition
also uses a geographical approach to the
definition of municipal storm sewer
systems to include municipal storm
sewers within, urbanized counties. Thus,
it closely resembles Option 7 of the
proposal. .The counties identified in
paragraph (ii) have, based on the 1980
Census, a population of 100,000 or more
in urbanized,5 unincorporated portions
of the county. In the unincorporated
areas of these counties (or in'the 20
States where the Census recognizes
minor civil divisions, unincorporated
county areas outside of towns pr
townships), the county is the primary
local government entity. In these cases,
the county performs many of the same
functions as incorporated cities with a
population of 100,000, and is generally
expected to have the necessary legal
and land use authority in these areas to
begin to implement storm water
management programs. Due to the
urbanized nature of their population,
discharges from the municipal separate
storm sewers in these counties will have
many similarities to discharges from
municipal systems in incorporated cities
with a population of 100,000 or more.
Addressing these counties in this
fashion will not adversely affect small
municipalities (incorporated places,
5 The Bureau of Census defines urbanized areas
to provide a description of high-density
development. Urbanized areas are comprised of a
central city (or cities) with a surrounding closely
settled area. The population of the entire urbanized
area must be greater than 50,000 persons, and the
closely settled area outside of the city, the urban
fringe, must generally have a population density
greater than 1,000 persons per square mile (just over
1.5 persons per acre) to be included
towns and townships) within the county,
as municipal separate storm sewers that
are located in the small incorporated
places, townships or towns within these
counties are not automatically included
as part of the system.
EPA has focused on the
unincorporated areas because permit
applications cannot be required from
systems that serve a population less
than 100,000, unless designated. EPA
received the comment that if the sewers
in incorporated places within such
counties were included as part of the
system for that county, there would be
the potential for systems serving a
population less than 100,000 to be
improperly subject to permit
requirements. EPA agrees with the
comment, except that EPA reserves the
authority to designate sewers in small
incorporated places as part of the
system subject to-permitting, pursuant to
paragraph (iii) of the final definition.
Incorporated areas within the identified
counties will be required to file permit
applications if the population served by
the municipal separate storm sewer
system is 100,000 or more.
As one commenter noted, the counties
addressed by the definition will
generally be areas of high growth with a
growing tax base that can finance a
storm water management program.
Numerous counties affected by
paragraph (ii) commented on the
proposal. Several of these indicated a
preference for the county government as
the permittee. Others indicated that
their county had the ability to perform
the functions of the permit applicant and
permittee. One county brought to EPA's
attention that the county had laid plans
for a storm water utility scheduled to be
in operation in 1989. Several of the
counties supported the use of
watersheds, or flexible regional
approaches, as the basis for the
definition of municipal separate storm
sewer systems. The modified definition
should satisfy these concerns.
EPA recognizes that some of the
counties addressed by today's rule have,
in addition to areas with high
unincorporated urbanized populations,
areas that are essentially rural or
uninhabited and may not be* the subject
of planned development. While permits
issued for these municipal systems will
cover municipal system discharges in
unincorporated portions of the county, it
is the intent of EPA that management
plans and other components of the
programs focus on the urbanized and
developing areas of the county.
Undeveloped lands of the county are not
expected to have many, if any,
municipal separate storm sewers.
Paragraphs (i) and (ii) above will help
resolve the problems associated with
permittees not having adequate land use
controls, the legal authority to
implement controls, and the ownership
of the conveyances. This factor was
mentioned by numerous commenters on
the proposed options, especially county
•governments. Under paragraphs (i) and
(ii), all publicly owned separate storm •
sewers within the appropriate municipal
boundaries will be defined as part of the
municipal system. In many cases, a
number of municipal operators of these
storm sewers will be responsible for
discharges from these systems. Since a
number of co-permittees may be
addressed in the permits for these
discharges, problems associated with
the ability to control pollutants that are
contributed from interrelated discharges
will be minimized. State highways or
flood control districts, which may have
no land use authority in incorporated
cities, will be co-permittees with the city
which does possess land use authority.
EPA envisions that permit conditions for
these systems will be written to
establish duties that are commensurate
with the legal authorities of a co-
permittee. For example, under a permit,
a flood control district may be
responsible for the maintenance of
drainage channels that they have
jurisdiction over, while a city is
responsible for implementing a sediment
and erosion ordinance for construction
sites which relates to discharges to the
drainage channel. Confusion over
ownership of conveyances or systems,
at least for the purposes of determining
whether they require a permit, will be
minimized since all conveyances will be
covered. Similarly, under paragraph (ii),
the affected counties are expected to
have the necessary legal and land use
authority to implement programs and
controls in unincorporated, urbanized
areas because the county government is
the primary political or governing entity
in these geographical areas.
Many commenters from all levels of
State and local government expressed
concern about controlling pollutants
from State highways. Paragraphs (i) and
(ii) will result in discharges from
separate storm sewers serving State
highways and other highways through
storm sewers that are located within
incorporated places with the
appropriate population or highways in
unincorporated portions of specified
counties being included as part of the
large or medium municipal separate
storm sewer system, since all municipal
separate storm sewers within the
boundaries of these political entities are
included. Paragraph (iv) can facilitate
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48042 Federal Register / Vol. 55; No. 222 / Friday^ November 16. 1990 / Rules .and Regulations
the submission of a permit application
for storm sewers operated as part of an
entire State highway system. Paragraph
(iv) would allow an entire system in a
geographical region under the purview
of a State agency (such as a State
Department of Transportation) to be
designated, where all the permit
application requirements and
requirements established under
§ 122.28{a)(lii)(C) can be met.
Paragraphs (i) and (iS) can effectively
deal with many of the major sources of
pollutants. One municipality noted that
Option 5 (paragraph (i)) would require
all systems in the incorporated
boundaries to obtain permits and
institute control measures, rather than
just the few owned or operated by
incorporated cities. Another
municipality noted that this approach
could deal with many of the regional
variations in sources of pollution. Many
commenters, including environmental
groups, believed that proposed Option 3
(systems owned or operated by
counties), Option 6 (systems within the
boundaries of counties), and Option 7
(system in urbanized areas) were good
approaches because more sources of
pollution would be addressed. It was
also maintained that Options 3,6 and 7
could incorporate watershed planning
which, in the view of some commenters,
Is the only effective way to address
pollutants in storm water.
Commenters noted that addressing
counties and urbanized areas would
focus attention on developing areas
which would otherwise be left out in the
initial phases of permitting. One
commenter noted that most new
development in large urbanized areas
occurs outside of core cities
(incorporated cities with a population of
100,000 or more). Newly developing
areas provide opportunities for installing
pollutant controls cost effectively. EPA
agrees with these comments and notes
that paragraph (ii) addresses a
significant number of counties with
highly developed or developing areas.
However, EPA is convinced that
addressing all counties or urbanized
areas in the initial phases of the storm
water program is ill-advised.
Commenters noted that some counties
have inappropriate or nonexistent
governmental structures, and that a
program that addressed all counties in
the country with a population of 100,000
or more would be unmanageable,
because too many municipal entities
nationwide would be involved in the
program initially. Commenters advised
that defining municipal storm sewer
systems solely in terms of the
boundaries of census urbanized areas
(Option 7) would result in systems
which did not correspond to
jurisdictions that are-in a.position to
implement a storm water programs.
Thus, EPA has modified Option 7 and
combined it with Option 6 to create
paragraph (ii) above.
Paragraph (iii) incorporates a
designation authority such that
municipalities that own or operate
discharges from separate storm sewers
systems other than those described in
paragraph (i) or (ii) may be designated
by the Director as part of the large or
medium municipal separate storm sewer
system due to the interrelationship
between the other discharges of the
designated storm sewer and the
discharges from the large or medium
municipal separate storm sewers. In
making this determination the physical
interconnections between the municipal
separate storm sewers, the location of
discharges from the designated
municipal separate storm sewer relative
to discharges from large or medium
municipal separate storm sewers, the
quantity and nature of pollutants
discharged to waters of the United
States, the nature of the receiving
waters, or other relevant factors may be
considered.
Comments indicated that the
designation authority as proposed and
described above should be retained.
One State noted that this approach gives
the most flexibility in making the case-
by-case designations, while also
delineating in sufficient detail what
criteria are used to make the
determination. This commenter was
concerned about being able to regulate
many of the interrelated discharges from
counties surrounding incorporated
cities.
Paragraph (iv) of the final definition
allows the permitting authority, upon
petition, to designate as a medium or
large municipal separate storm sewer
system, municipal separate storm
sewers located within the boundaries of
a region defined by a storm water
management regional authority based
on a jurisdictional, watershed, or other
appropriate basis that includes one or
more of the systems described in
paragraphs (i), (ii), (iii).
Paragraph (iv) was added to the final
definitions to respond to a variety of
•concerns of commenters. One of the
prime concerns of commenters was that
the definition of large and medium
municipal separate storm sewer systems
must be flexible enough to
accommodate: Programs on a watershed
basis,, existing storm water programs
and frameworks and regional
differences in climate, geography, and
political institutions. Some States were
particularly expressive regarding this
concern. One State maintained that an
inflexible program could totally disrupt
Ongoing State efforts. Other commenters
urged that the regulation encourage the
establishment of regional storm water
authorities or other mechanisms that
can deal with storm water quality on a
watershed basis. One State proposed
defining the municipal separate storm
sewer system to include all municipal
separate storm sewers within a core
incorporated place of 100,000 or more,
and all surrounding incorporated places
within the State defined watershed. One
of the State water districts advised that
the regulations should be flexible
enough to allow regional water quality
boards to apply the regulations
geographically. One national association
expressed concern that existing
institutional arrangements for flood
control and drainage would be ignored,
while another warned against fostering
a proliferation of inconsistent
patchwork programs based on arbitrary
definitions and jurisdictions which bear
no relationship to water quality.
EPA is convinced that the mechanism
described in paragraph (iv) provides a
means whereby the mechanisms and
concepts identified above can be
utilized or created in appropriate
circumstances. In addition, § 122.26(f)(4)
provides a means for State or local
government agencies to petition the
Director for the designation of regional
authorities responsible for a portion of
the storm water program. For example,
some States or counties may currently
or in the near future have regional storm
water management authorities that have
the ability to apply for permits under
today's rule and carry out the terms of
the permit. Some of these authorities
may encompass within their jurisdiction
large or medium municipal separate
storm sewer systems as defined in
today's rule. EPA wishes to encourage
such entities to assume the role as
permittee under today's rule. That is the
purpose of paragraph (iv). Such
authorities may petition the Director to
assume such a role.
Many commenters expressed the view
that municipal management plans must
be coordinated or developed among co-
permittees on a regional basis and in the
same timeframe. Paragraphs (i), (iii) and
(iv) would bring in all appropriate
municipal entities with jurisdiction over
a specified geographical area in the
same timeframe. Several commenters,
including one State, noted proposed
Option 1 would lead to fragmented, ill-
coordinated programs. Paragraphs (i),
(iii), and (iv) do not suffer this drawback
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Federal Register / Vol. 55. No. 222 / Friday. November. 16, 1990 / Rules and Regulations 48043
to the same extent since all the
municipal separate storm sewers are
addressed within the incorporated
place, instead of only those owned or
operated by the incorporated place.
Equal treatment of municipalities
within a watershed or other specified
area'was a major subject of comment.
Many commenters urged that a degree
of fairness could be achieved by
requiring permit applications, and the
concomitant expenditure of municipal
dollars and resources, from all
municipalities within an entire urban
area that contributes to storm water
pollution, rather than from a discrete
system within an arbitrary political
boundary. Paragraph (i), especially
when coupled with paragraphs (ii), (iii).
and (iv), can best accomplish a more
equitable approach, because all owners
and operators of municipal separate
storm sewers within a system have
responsibilities. In addition, some of the
areas outside the incorporated city
limits which are engaged in expansive
urban or suburban development will be
brought into the program. Paragraph (iv)
will provide a means for State or
regional authorities to use existing or
emerging mechanisms to set up storm
water management programs, and
would require multiple agencies either
to become regional co-permittees or to
be subject to a regional permit.
Paragraphs (i), (ii), (iii), and (iv) could
also require flood control districts to be
co-permittees, which was a major
concern of counties and numerous cities.
One municipality stated that the
inclusion of flood control districts would
greatly reduce the administrative burden
required to prepare a single inter-city
discharge agreement and would
establish a common legal authority to
implement the program. Numerous
county agencies believed it imperative
that flood control districts be brought
into a system-wide permit strategy.
Paragraphs (i) and (iii) may not
accommodate the concern of several
commenters that the number of co-
permittees be kept to a minimum. The
fact that all the municipal separate
storm sewers within the boundaries of
the appropriate incorporated places will
be addressed dictates that some permits
will have several co-permittees. This is
a major concern since it goes directly to
achieving an effective initial storm
water program. There is concern about
being able to bring all the co-permittees
together under intra-municipal
agreements or contracts within
regulatory deadlines. This problem
would be resolved in the short term by
selecting Option 1. However, Option 1
may still require inter-municipal
agreements because of the designation
authority under § 122.26 (b)(4)(ii) and
(b)(7)(ii) of the proposal. In addition,
such inter-jurisdictional problems will
arise after October 1,1S92 when the
moratorium on requiring NPDES permits
for discharges from other municipal
separate storm sewers ends. Under the
permitting goals established by the
CWA, multi-jurisdictional storm water
programs and agreements cannot be
avoided. Despite interest in .limiting the
number of co-permittees, EPA decided
not to adopt Option 1 for the reasons
already stated.
Section 402{p)(3)(B)(i) of the amended
CWA provides that permits for
municipal discharges from municipal
storm sewers may be issued on a
system-wide or jurisdiction-wide basis.
This provision is an important
mechanism for developing the
comprehensive storm water
management programs envisioned by
the Act.
Under the permit application
requirements of today's rule, if the
appropriate co-applicants are identified,
one permit application may be
submitted for a large or medium
municipal separate storm sewer system
(see section VI.G.4 above). System-wide
permit applications can in turn be used
to issue system-wide permits which
could cover all discharges in the system.
Where several municipal entities are
responsible for obtaining a permit for
various discharges within a single
system, EPA will encourage system-
wide permit applications involving the
several municipal entities for a number
of reasons. The system-wide approach
not only provides an appropriate basis
for planning activities and coordinating
development, but also provides
municipal entities participating in a
system-wide application the means to
spread the resource burden of
monitoring, evaluating water quality
impacts, and developing and
implementing controls.
The system-wide approach provided
in today's rule recognizes differences
between individual municipalities with
responsibilities for discharges from the
municipal system. Today's applic >tion
rule requires information to be
submitted that enables the permit
issuing authorities to develop tailored
programs for each permittee with
responsibility for certain components,
segments, or portions of the municipal
separate storm sewer system. The
permit application requirements allow
individual municipal entities,
participating in system-wide
applications, to submit site specific
information regarding storm water
quality management programs to reduce
pollutants in system discharges as a
whole, or from specific points within the
system.
In some cases, it may be'undesirable
for all municipal entities with storm
water responsibility within a municipal
system to be co-permittees under one
system-wide permit. The permit
application requirements in today's rule
allow individual municipal entities
within the system to submit permit
applications and obtain a permit for that
portion of the storm sewer system for
which they are responsible. .Thus,
several permits may be issued to cover
various subdivisions of a single
municipal system.
In summary, EPA believes that the
definition of municipal storm sewer
system adopted in today's rule has
several distinct advantages that were
identified in comments:
• The definition adopts features of
several options;
• The definition targets areas that
have the necessary police powers and
land use authority to implement the.
program;
• The definition can utilize
watersheds or accommodate existing
administrative frameworks and storm
water programs;
• The definition provides that all
systems within a geographical area
including highways and flood control
districts will be covered, thereby
avoiding fragmented and ill-coordinated
programs; .
• The definition has flexible
designation authority; and
• The definition addresses major
sources of pollutants without being
overly broad.
H. Permit Application Requirements for
Large and Medium Municipal Systems
1. Implementing the Permit Program
Given the differing nature of
discharges from municipal separate
storm sewer systems in different parts
of the country and the varying water
quality impacts of municipal storm
sewer discharges on receiving waters,
today's permit application requirements
are designed to lead to the development
of site-specific storm water management
programs. In order to effectively
implement this goal, EPA intends to
retain the overall structure of the
municipal permit application as
proposed in the December 7,1988,
proposal.
2. Structure of the Permit Application
EPA proposed'a two-part permit
application designed to meet the goal of
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48044 Federal Register / Vol. 55, No. 222 / .Friday, November 16, 1990 / Rules and Regulations
developing site-specific storm water
quality management programs in NPDES
permits. In response to a request for
comments on this aspect of the proposal,
numerous comments were received.
After reviewing these comments, EPA
has decided to retain the two-part
permit application. Many commenters
agreed that the approach as proposed is
appropriate for phasing in and
developing site specific storm water
management programs. One large
municipality strongly endorsed the two-
part application, stating that it would
facilitate the identification of water
quality problem areas and the
development of priorities for control
measures, thereby allowing for more
cost-effective program development.
Two State agencies expressed the same
view, and noted that the two-part
approach is reasonable and well
structured for efficient development of
programs. One large municipality noted
it would allow the permit authority and
the permit applicant the time needed to
gain the knowledge and data to develop
site-specific permits. A medium
municipality expressed similar views.
Numerous commenters submitted
endorsements of a proposal offered by
one of the national municipal
associations. This approach responded
to EPA's request for comments on
alternatives to a two-part application
process. These comments recommended
having permit applicants submit
information regarding their existing legal
authority, prepare source identification
information, describe existing
management plans, provide discharge
characterization information based on
existing data, and prepare a monitoring,
characterization and illicit discharge
and removal plan in a one-part
application. The remaining requirements
such as: implementing plans to remove
illicit connections, obtaining legal
authority, monitoring and
characterization, plans for structural
controls, preparation of control
assessments, preparation of fiscal
analysis, and management plan
implementation would be part of the
permit and take place during the
compliance period of the permit. It was
argued that this would result in a more
orderly development of stormwater
management programs while allowing
for quick implementation of efforts to
eliminate illicit discharges and initiate
some BMPs.
After careful review and
consideration of these comments, EPA is
convinced that this approach would not
meet the goals and requirements of
section 402 of the Clean Water Act.
Section
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these programs,. EPA disagrees that it
would be appropriate to accept a
substitution in its entirety without
tailoring such a program to today's
specific information requirements. One
municipality noted that municipal
systems are not well documented and
responsibility for them is in question. In
response, EPA notes that the source
identification procedure is designed, in
part, to address such shortcomings.
Several municipalities suggested that
legal authority could be demonstrated
by providing EPA with copies of
appropriate local ordinances to
demonstrate their legal authority and a
statement from the city attorney. EPA
agrees that these methods are
appropriate for making this
demonstration.
Several commenters noted that there
was adequate existing municipal legal
authority to carry out the program
requirements or such authority could be
obtained by the municipality. Other
commenters stated that municipalities
possess some authority over certain
activities but may not have authority
over discharges from roads and
construction. Numerous commenters,
however, claimed that certain
municipalities had no existing legal
authority to carry out the permit
requirements and that obtaining all the
necessary legal authority could take
several years due to cumbersome
legislative and political processes. In
response, part 1 of the permit
application will establish a schedule for
the development of legal authority that
will be needed to accomplish the goals
of the permit application and permits.
Some municipalities will have more
advanced storm water programs with
appropriate legal authority or the ability
to establish necessary ordinances.
Providing an appropriate schedule will
not present difficulties in these
circumstances. EPA also notes that the
definitions of large and medium
municipal separate storm sewer systems
finalized in today's rule will in many
cases result in a number of co-
applicants participating in a system
wide application. It is anticipated that
the development of adequate inter-
jurisdictional agreements specifying the
various responsibilities of the co-
permittees may in some cases be very
complex, thereby justifying the
development of a schedule to complete
the task. For example, clarifying the
authority over discharges from roads
may present difficulties where a number
of municipal entities operate different
roads in a given jurisdiction. In other
limited cases, the MEP standard for
municipal permits may translate into
permit conditions that extend the
schedule for'obtaining necessary legal
authority into the term of the permit.
These situations will be evaluated on a
case-by-case basis by permit issuing
authorities.
Numerous commenters supported the
field screening analysis as proposed.
Comments from three municipalities
noted that it would be a cost effective
means of identifying problem areas. One
municipality noted that illicit
connections can be reliably detected by
the screening method proposed. In view
of these comments EPA has decided to
retain this portion of the regulation.
However many commenters expressed
concern over how the proposed
approach would work given the
particular circumstances under which
some municipal storm water systems are
arranged. Several commenters
questioned the effectiveness of dry
weather monitoring for several reasons,
including the shallow depth of some
cities' water tables. Accordingly, an
alternative approach may be utilized by
the municipal permittee, and this is
discussed later in section VI.H.3.
Some comments suggested that if any
field screening is required that it be
done during the term of the permit. EPA
believes that field screening should not
be done during the term of the permit
exclusively. Unless a field screening is
accomplished during the permit
application phase there will be scant
knowledge, if any, upon which illicit
connection programs can be established
for the term of the permits. EPA views
field screening during the application
process as an appropriate means of
beginning to meet the CWA's
requirement of effectively prohibiting
non-storm water discharges into
municipal separate storm sewers.
The submittal of part 1 of the permit
application will allow EPA, or approved
NPDES States, to adjust part 2 permit
application requirements to assure
flexibility for submitting information
under part 2, given the site specific
characteristics of each municipal storm
sewer system.
EPA agrees with the concerns of
commenters regarding the estimate of
the reduction of pollutant loads from
existing management programs. EPA
agrees that sufficient data may not be
available to establish meaningful
estimates. Therefore this component of
the proposed part 1 is not a requirement
of today's rule.
b. Part 2 Application. Part 2 of the
proposed permit application is designed
to supplement information found in part
1 and to provide municipalities with the
opportunity of proposing a
comprehensive program of structural
and non-structural control measures that
will control the discharge of pollutants,
to the maximum extent practicable, from
municipal storm sewers. The
components of the proposed part 2 of
the permit application included:
• A demonstration that the legal
authority of the permit applicant
satisfies regulatory criteria
(§ 122.26(d)(2)(i));
« Supplementation of the source
identification information submitted in
part 1 of the application to assure the
identification of all major outfalls and
land use activities (§ 122.26(d)(2)(ii);
• Information to characterize
discharges from the municipal system;
• A proposed management program
to control the discharge of pollutants to
the maximum extent practicable, from
municipal storm sewers
(§ 122.26(dX2)(iv));
• Assessment of the performance of
proposed controls (§ 122.26(d)(2)(v));
• A financial analysis estimating the
cost of implementing the proposed
management programs along with
identifying sources of revenue
§ 122.26(d)(2)(vi);
• A description of the roles and
responsibilities of co-applicants
(§ 122.26(d)(2)(vii)).
One municipality agreed that the
assessment of the performance of
controls was a critical component of
establishing a viable program and one
that could be accomplished within the
time frame of the permit application
deadlines. One commenter suggested
that the applicant describe what
financial resources are currently
available. In response, EPA will require
applicants to describe the municipality's
existing budget for storm water
programs in part 1 of the permit
application requirements. This
information will be useful to evaluate
the municipality's ability to prepare and
implement management plans. In
response to other comments, this
information will also include an
overview of the municipality's financial
resources and a description of the
municipality's budget, including overall
indebtedness and assets.
EPA has retained the financial
analysis in this portion of the rule on the
advice of two municipal commenters,
who agreed that this was an important
component of establishing a viable
program and one that could be
accomplished within the time frame ot
the permit application deadlines.
Another commenter noted that this
requirement is appropriate to justify a
municipality's proposed management
plan.
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Federal'Register / Vol. 55. No. 222 / Friday. November 16. 1990 / Rules and Regulations
3. Major Outfalls
In past rulemakings, a controversial
Issue has been the appropriate sampling
requirements for municipal separate
storm sewer systems. Earlier storm
water rulemakinga have been based
primarily on the principle that all
discharges to waters of the United
States from municipal separate storm
sewers located in urban areas must be
covered by an individual permit. This
approach requires that individual permit
applications contain quantitative data to
be submitted for all such discharges.
This approach was criticized because of
a potentially unmanageable number of
outfalls in some municipal separate
storm sewer systems. Most incorporated
cities with a population of 100,000 or
more do not know the exact number of
outfalls from their municipal systems;
but based on the comments, the number
ranges from 500 to 8,000 or more.
In light of the increased flexibility
provided by the WQA and the
development of EPA's system-wide
approach for regulating municipal
separate storm sewer discharges,
today's rule will not require submittal of
individual permit applications with
quantitative data for each outfall of a
municipal system. Rather today's rule
will encourage system-wide permit
applications to provide information
suitable for developing effective storm
water management programs. Under this
approach, not ell outfalls of the
municipal system will be sampled, but
rather more specific and accurate
models for estimating pollutant loads
end discharge concentrations will be
used. The use of these models will
require the identification of sources
which are responsible for discharging
pollutants into municipal separate storm
sewers and will not require as much
data to calibrate due to the source-
specific nature of the model. A number
of standard and localized models have
been developed for estimating pollutant
loads from storm water discharges.
Several commenters support the use
of models for developing management
plans .and estimating pollutant loadings
ami concentrations. EPA encourages
their use where applicable to particular
systems.
By adopting an approach that
incorporates source identification
measures, the amount of quantitative
data required to characterize discharges
from the municipal system will be
reduced because of the increased
accuracy of the site-specific models
which can be used. Consistent with a
system-wide permit application
approach, EPA proposed to focus source
identification measures on "major
outfalls." The.proposed definition of
major outfalls includes any municipal
separate storm sewer outfall that
discharges from a pipe with a diameter
of more than 36 inches or its equivalent
(discharges from a drainage area of
more than SO-acres), or for municipal
separate storm sewers that receive
storm water from lands zoned for
industrial activities, an outfall that
discharges from a pipe with a diameter
of more than 12 inches or its equivalent
(discharges from a drainage area of 2
acres or more).
Numerous entities offered comments
on this definition. Several commenters
concurred with this proposed definition.
One commenter maintained that the
data collected at such outfalls would be
sufficient to-estimate pollutant loads as
well as concentrations using well
calibrated models. Another municipality
stated that 50 acres was an excellent
approximation for the average drainage
area served by a 38-inch storm sewer.
Two States and one county supported
the definition as proposed. One large
municipal entity supported the
definition, stating that screening major
outfalls could be accomplished with
available staff over a three month
period. In light of these comments, EPA
has decided to retain, in part, the
definition as proposed.
Numerous commenters suggested
alternative definitions or otherwise
disagreed with the proposed definition.
Most of these comments expressed
concern about the number of outfalls
that would have to be tested or screened
if the definition was retained. For this
reason EPA has decided to limit the
total number of major outfalls or
equivalent sampling points that have to
be tested to 250 or 500 for medium or *
large systems respectively. This change
is discussed in further detail below.
The following are examples of
comments that opposed the definition of
a "major outfall" as proposed. Several
commenters stated that, in the
southwest, 6 to 12 foot outfalls are the
norm,'and that smaUer outfalls should
not be addressed unless there is a
compelling reason to suspect illicit
connections. One commenter suggested
a size of 54 inches and 50 acres, while
another commenter suggested that 48
inches would be appropriate. One
commenter suggested that the diameter
for industrial pipes should'be 18 inches,
•while another commenter suggested-that
50 acres should be the only criterion.
One commenter noted that pipe size
will vary according to rainfall patterns
and that a single approach would not
work universally. This comment, and
other similar points of view as noted
herein, convinces that Agency that a
more flexible approach is needed to
identify field screening and sampling
locations. However, EPA is also
convinced that a universal standard is
necessary for purposes of identifying
drainage areas within the municipal
system and discrete areas of land use
that are drained by certain sized
outfalls. This information is critical
since these conveyances, and lands they
drain, are sources of pollutants to
waters of the United States from
municipal systems and are properly the
subject of appropriate permit conditions.
Many commenters suggested placing a
limit on the number of major outfalls
addressed during the field screening
phase of the permit application. Two
municipalities stated that the proposed
definition of major outfalls in terms to
the pipe diameter was too small ana
that too many outfalls would be
covered. One municipality stated that
under the proposed definition, it would
have over 4700 "major outfalls," a
number viewed as being unacceptably
large. Several municipalities argued that
they would be penalized for over-design
of their storm drain.system. One
municipality stated field screening of
outfalls should be limited to 200 for
medium cities and 500 for large cities.
Some commenters suggested EPA set a
percentage of major outfalls for
screening, because all pipes in some
municipalities meet the definition of
major outfall. One commenter suggested
that a sliding scale be used to determine
the number of outfalls tested: those with
50 test all, those with 100-200 test 50%,
etc. Other commenters suggested a flat
percentage of outfalls or flat number
such as, 100.
4. Field Screening Program
EPA also received several comments
in response to the proposed field
screening methodology. Among the
major concerns were: End of pipe
sampling may not be practical and the
more appropriate and accessible
location is likely to be the nearest
upstream manhole; the type of discharge
•should be the criterion for selecting
sampling points as opposed to pipe size;
a system wide evaluation is more
appropriate than checking each outfall;
within some systems, major outfalls or .
pipe size will not reflect discharges from
suspect or old land use areas; efforts
should be focused on locations where
illicit connections are expected; sites
should be determined by looking at sites
within drainage basin areas based on
land use- within those basins; land use
and hydrology of the, watershed should
be the criteria-for selecting-points;
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Federal Register / Vol. 55. No. 222 / Friday. November 16. 1990 / fiules and Regulations 48047
screening should be performed at
locations that will allow for the location
of upstream discharges; the focus should
be exclusively on drainage areas rather
than pipe size, since pipe size will vary
with slope; a prescribed percentage of
total flow may be more appropriate;
state water quality standards should be
utilized along with focusing on actual
quality in the reaches of a stream.
EPA is convinced by these comments
that today's rule should allow applicants
to either field screen all major outfalls
as proposed (first procedure) or use a
second procedure to provide for the
strategic location of sampling points to
pinpoint illicit connections. EPA agrees
with comments that the size of the
outfall will not always reflect the
chance of uncovering illicit connections
or discharges, and that field screening
points should be easily accessible.
This second procedure is as follows:
field screening points and/or outfalls
are randomly located throughout the
storm sewer system by placing a grid
over a drainage system map and
identifying those cells of the grid which
contain a major outfall' or segment of the
storm sewer system. The grid shall be
established using the following
guidelines and criteria:
(1) A grid system consisting of
perpendicular north-south and east-west
lines spaced 1/4 mile apart shall be
overlaid on a map of the municipal
storm sewer system, creating a series of
cells;
(2) All cells that contain a segment of
the storm sewer system shall be
identified; one field screening point shall
be selected in each cell; major outfalls
may be used as field screening points;
(3) Field screening points or major
outfalls should be located downstream
of any sources of suspected illegal or
illicit activity;
(4) Field screening points shall be
located to the degree practicable at the
farthest manhole or.other accessible
location downstream in the system,
within each cell; however, safety of
personnel and accessibility of the
location should be considered in making
this determination;
(5) The assessment and selection of
cells shall use the following criteria:
Hydrological conditions; total drainage
area of the site; population density of
the site; traffic density; age of the
structures or buildings in the area;
history, of the area; land use types;
(6) For medium municipal separate
storm sewer systems, no more than 250
cells need have identified field screening
points; in large municipal separate storm
sewer systems, no more than 500 cells
need to have identified field screening
points for detecting illicit connections;
cells established by the grid that contain
no storm sewer segments will be
eliminated from consideration; if fewer
than 250 cells in medium municipal
sewers are created, and fewer than 500
in large systems are created by the
overlay on the municipal sewer map,
then all those cells which contain a
segment of the sewer system shall be
subject to field screening (unless access
to the separate storm sewer system is
impossible);
(7) Large or medium municipal
separate storm sewer systems which are
unable to utilize the procedures
described in paragraphs (1) through (6)
above, because a sufficiently detailed
map of the separate storm sewer
systems is unavailable, shall field
screen at least 250 or 500 major outfalls
respectively using the following method:
the applicant shall establish a grid
system consisting of north-south and
east-west lines spaced 1/4 mile apart
overlaid on a map of the boundaries of a
large or medium municipal entity
described at § 122.26(b), thereby
creating a series of cells; major outfalls
in as many different cells as possible
shall be selected until 500 major outfalls
(large municipalities) or 250 major
outfalls (medium municipalities) are
selected; a field screening analysis shall
be undertaken at these major outfalls.
The methodology outlined above is in
response to public comments which
indicated that the field screening and
sampling of major outfalls as proposed
would lead to insurmountable logistical
problems in some municipal systems.
EPA believes that the above is an
effective approach to pinpointing
suspected problem points along a given
trunkline or segment of separate storm
sewer system. Jurisdictions with no
extensive or previous history of
monitoring, or lack of an intensive
monitoring program can utilize the
methods described in establishing a
program. Furthermore, the approach will
allow for the prioritization of outfalls,
sampling points, or areas within the
municipality where there are suspected
illicit connections or discharges, or other
circumstances creating higher
concentrations and loadings of
pollutants.
Paragraph (7) enables municipalities
to select major outfalls without regard to
the municipal sewer system map that is
required for using the procedure
described in paragraphs (1) through (6).
However, the applicant must still select
outfalls within the cells created by
overlaying a 1/4 mile grid over a map of
the boundaries of the large or medium
municipal entity defined under
§ 122.26(b), and select major outfalls
within as many of those cells as
possible, up to 500 (large municipal
systems) or 250 (medium municipal
systems). In this manner, as many
different areas and land uses within the
municipal system will be covered by the
field screening component of the
municipal application.
In order to keep the costs of the
program within the anticipated limits of
the proposed regulation, the number of
outfalls or sampling locations using the
grid system is to be limited to 500 for
large municipal separate storm sewer
systems and 250 for medium municipal
separate storm sewer systems.
In response to several comments, EPA
has clarified the definition of major
outfalls with regard to the words, "pipe
with an inside diameter of 36 inches or
more or its equivalent" and "a pipe with
an inside diameter of 12 inches or more
or its equivalent." This definition has
been modified to specify that single
pipes or single conveyances with the
appropriate diameter or equivalent are
covered.
EPA's proposal required municipal
permit applicants to submit a fiscal
analysis of expenditures that will be
required in order to implement the
proposed management plans required in
part 2 of the application. The description
of fiscal resources should include a
description of the source of the funds.
Some communters felt that a fiscal
analysis should only be required during
the term of the permit. In response, EPA
believes that during the two years of
permit application development, the
permit applicant should be in a position
to submit information on the ability and
means for financing storm water
management programs during the term
of the permit. EPA views this
information as an important means of
evaluating the scope of program anr1
whether the permittee will be devoting
adequate resources to implementing the
program before that program is mapped
out in the permit itself.
5. Source Identification
The identification of sources which
contribute pollutants to municipal
separate 'storm sewers is a critical step
in characterizing the nature and extent
of pollutants in discharges and in
developing appropriate control
measures. Source identification can be
useful for providing an analysis of
pollutant source contribution and for
identifying the relationship between
pollutant sources and receiving water
quality problems. In cases where end-of-
pipe controls alone are not practicable,
it is essential to identify the source of
pollutants into-the municipal storm
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48048 Federal Regteter / Vol. 5Ji, No. 222 / Friday, November 16, 1990 / Rules and Regulations
sower systems to support a targeted
approach to control pollutant sources.
The relative contribution of pollutants
from various sources will be highly aite-
speciflc. The first step in developing a
targeted approach for controlling
pollutants in discharges from municipal
storm sewer systems is identifying-the
various sources in each drainage basin
Ihot will contribute pollutants to the
municipal storm sewer system.
This rulcmaking phases in the seurce
Identification requirements of .the permit
program by establishing minimum
objectives in part I of the application
and by requiring applicants to submit a
source identification plan in part 2 of the
application to provide additional
information during the term of the
permit. The minimum source
identification requirements of parti of
the application have been designed to
provide sufficient information to provide
an initial characterization of pollutants
in the discharges from the municipal
storm aewer system. EPA realizes that
with many large, complex municipal
storm sewer systems, it may be difficult
to identify all outfalls during the permit
application process. Accordingly, EPA L
requiring that known outfalls be
reported In part 1 of the application. Par
1 of the application will also include: A
description of procedures and a
proposed program to identify additional
major outfalls; the identification of the
drainage area associated with known
outfalls; a description of major land use
classifications in each drainage area,
descriptions of soils, the location of
industrial facilities, open dumps,
landfills or RCRA hazardous waste
facilities which discharge storm water ti
the municipal storm sewer system; and
ten year projections of population
growth and development activities
(population data and development
projections will be useful for future
predictions of loadings to receiving
waters from municipal storm sewer
systems, and capacities required for
treatment systems). In general,
population projections should reflect
various scenarios of development (high,
medium, low relative to recent trends).
Part 2 of the application will
supplement the information reported in
part 1 of the application so that, at a
minimum, all major outfalls are
Identified.
Under today's rule, municipal or
public entities responsible for applying
for and obtaining an NPDES permit will
be required to identify the location of an
open dump, sanitary landfill, municipal
incinerator or hazardous waste
treatment, storage, and disposal facility
under RCRA which, may discharge storm
tvsler to the system as Well as all
facilities which discharge storm water
associated with industrial activity into a
large or medium municipal separate
storm sewer system.
Requiring these source identification
measures is supported by the legislative
history of section 405 of the WQA,
which instructs that "[i]n writing any
permit for a municipal separate storm
sewer, EPA or the State should pay
particular attention to the nature and
uses of the drainage area and the
location of any industrial facility, open
dump, landfill, or hazardous waste
treatment, storage, or disposal facility
which may contribute pollutants to the
discharge." (emphasis added) [Vol 133
Cong. Rec. S752 (daily ed. Jan, 14,1987].
One municipality questioned the
purpose of the topographic map and
commented that the scale of the
topographic map is too large to indicate
any of the required outfall, drainage,
industrial or structural control
information. In response, the purpose of
the topographic map is to identify
receiving waters, major storm water
sewer lines that contribute discharges to
these waters, and potential sources of
storm water pollution. EPA disagrees
that a USGS 7.5 scale map is
inappropriate for identifying these
features within a municipal system. The
scale afforded by such a map provides
sufficient detail to allow specified
delineation of outfalls, while not
requiring an overly burdensome map in
terms of size. Numerous commenters
noted the value of source identification
information and generally supported
submitting this information in the permit
application.
Many commenters questioned the
value of the source identification
information for the purpose of
characterizing pollutant loads and
concentrations. Conversely, one
commenter opined that the requirement
would provide sufficient information to
estimate pollutant loadings from each
outfall using loading models to estimate
loadings by watershed. In response, the
source identification information serves
several purposes. It is the first step for
identifying potential sources of
pollutants from which more in depth
analysis can be accomplished, under the
discharge characterization component of
the application. Also, where
appropriate, it may be used in
conjunction with models to estimate
loadings and concentrations. EPA has
also taken note of the many comments
that question or dismiss the concept of
determining pollutant loads and
concentrations solely from source
identification. Accordingly. EPA is
convinced that at least some of the,
sampling requirements as proposed are
necessary to facilitate more accurate
system specific estimates of pollutant
concentrations and loadings.These are
discussed below, in the discharge
characterization section.
One commenter suggested that aerial
photos be submitted in lieu of
topographic maps. EPA agrees that an
aerial photograph of the appropriate
scale that communicates the same
information as a topographic map may
be substituted. Today's final rule
reflects this flexibility.
The source identification component
of the municipal application also
requires that municipal applicants
identify the industrial activity within the
drainage, area associated with each
major outfall. One commenter stated
that where multiple storm sewers
outfalls discharge to a stream reach.
municipalities should be allowed to
delineate a single sewer-shed for
identifying sources of industrial activity.
In response! the rule does not delimit an
applicant's ability to identify industries
in groups according to a common series
of storm sewer outfalls, if that is an
easier or more appropriate methodology
for that particular applicant. However.
EPA would view this as appropriate
only where the land use is of one type,
such as industrial. Where land use is
mixed, within the drainage area
associated with each major outfall, such
differences need to be identified.
In response to comments, to the extent
that EPA is requesting that applicants
identify -the types of industrial facilities
operating within the municipality, the
municipality is free to use Standard
Industrial Classification (SIC) or other
systems which identify the principal
products or services of the facility. One
commenter disagreed with EPA's
decision to require a list of water bodies
that are listed under CWA sections
304(1), 319(a), 314(a), and 320, because
the States already have this information
and that requesting it from permittees
could result in "omissions,
misunderstandings, and mistakes." EPA
believes that these waters should be
identified in the application so that
appropriate permit conditions can be
developed that address storm water
discharges that are adversely effecting
such waters. EPA believes that having
this information immediately at the
disposal of the municipality and the
permit writer will speed the process and
alert the municipality of storm water
discharges to listed water bodies and
potentially polluted storm water
discharges to those waters.
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Federal Register / Vol. 55, No. 222 / Friday, November 16, 1990 / Rules and Regulations 48049
6. Characterization of Discharges
The characterization plan and data
collection required in today's rule as
elements of Part-one and Part-two of the
municipal permit application is
comprised of several major components:
• A screening analysis to provide
information to develop a program for
detecting and controlling illicit
connections and illegal dumping to the
municipal separate storm sewer system;
• Initial quantitative data to allow the
development of a representative
sampling program to be incorporated as
a permit condition;
• System-wide estimates of annual
pollutant loadings and the mean
concentration of pollutants in storm
water discharges, and a schedule to
provide estimates during the term of the
permit for each major outfall of the
seasonal pollutant loadings and the
event mean concentration of pollutants
in storm water discharges; and
• An identification of receiving
waters with known water quality
impacts associated with storm water
discharges.
Several commenters noted the
importance of developing and targeting
management programs based on
discharge characterization data and
monitoring. Numerous other commenters
stressed the importance of a program to
identify and eliminate illicit connections
and improper disposal. EPA agrees that
discharge characterization is an
important component of developing
management programs. Most of the
discharge characterization components
of the municipal application procedure
have been retained as proposed.
However some changes and
clarifications have been made, and
these are noted below.
a. Screening analysis for illicit
discharges (part 1 of application). Illicit
discharges (non-storm water discharges
without a NPDES permit), and illegal
dumping to municipal separate storm
sewer systems occur in a relatively
haphazard manner. Due to the
unpredictability of such discharges,
today's permit applications require a
field analysis for the development of
priorities for detecting and controlling
such discharges. A field screening
approach will provide a means of
detecting high levels of pollutants in dry
weather flows, which is one indicator of
illicit connections. Results of a field test
of such discharges will provide further
information about the nature of the
discharge to determine if further
investigation is warranted. Visual
observation of dry weather flows has
been shown to be one the mns* effective
means for tracking down illicit
connections and improper disposal.
As discussed in greater detail in
section VI.H.7.b of today's preamble,
EPA is proposing to require that
municipal applicants submit a
comprehensive plan to develop a
program to detect and control illicit
connections and illegal dumping. In
order to develop appropriate priorities
for these programs, applicants shall
submit the results of a screening
analysis to be performed on major
outfalls or "field screening points" in the
systems to detect the presence of illicit
hookups and illegal dumping. The
results of the screening analysis,
referred to as the field screen, would be
reported in part 1 of the permit
application.
Under the requirements for a field
screen, the applicant or co-applicants
will submit a description of
observations of dry weather discharges
from major outfalls or "field screening
points" identified in part 1 of the
application. At a minimum, the field
screen would include a description of
visual observations made during a dry
weather period. If any flow is observed
during a dry weather period, two grab
samples will be collected during a 24
hour period with a minimum period of
four hours between samples. For all •
such samples, a description of the color,
odor, turbidity, the presence of an oil
sheen or surface scum as well as any
other relevant observation regarding the
potential presence of non-storm water
discharges or illegal dumping would be
provided. In addition, the applicant
should provide the results of a field
screen which includes on-site estimates
of pH, total chlorine, total copper, total
phenol, detergents (or surfacants) along
with a description of the flow. EPA is
not requiring analytical methods
approved under 40 CFR part 136 be used
exclusively in the field screen. Rather,
the use of inexpensive field sampling
techniques such as the use of
colormetric detection methods is
anticipated. Where the field screen does
not involve analytical methods
approved under 40 CFR part 136, the
applicant is required to provide a
description of the method used which
includes the name of the manufacturer
of the test method, including the range
and accuracy of the test. Appropriate
field techniques for a field screen of dry
weather discharges are discussed in
EPA guidance for municipal storm water
discharge permit applications.
It should be clarified that data from
the field screen is generally not
appropriate for comprehensive
evaluation of water quality impacts, or
estimating pollutant loadings. Rather,
the information from the field screen in
part 1 of the application will be used
along with other information, such as
the age of development and degree of
industrial activity in the drainage basin,
to identify areas or outfalls which are
appropriate targets for management
programs and for investigations directed
at identifying and controlling non-storm
water discharges to separate storm
sewers during the term of the permit.
In the December 7,1988, proposal,
EPA proposed a second phase of the
screening analysis requiring that wet-
weather and dry-weather samples be
collected and analyzed in accordance
with analytical methods approved under
40 CFR part 136 from designated major
outfalls for a larger set of pollutants
identified with illicit connections.
Comments essentially viewed this
proposal as too ambitious for the permit
application. One commenter
recommended that this procedure could
best be accomplished during the term of
the permit. Some comments maintained
that the collection of analytical samples
as a follow up to an initial field screen
analysis was not the most cost-effective,
practicable or efficient method for
pinpointing illicit connections. EPA
recognizes that several municipal
programs to detect and control illicit
connections and other non-storm water
discharges have been successfully
developed and implemented without the
use of extensive analytical sampling (for
example, programs in Fort Worth, TX
and Washtenaw County, MI). After
identifying and analyzing the comments
on this aspect of the proposal EPA has
withdrawn this element of the proposal
from today's rule. EPA believes that a
follow-up phase to the initial field
screening is more appropriate during the
term of the permit. Thus, EPA has
dropped the field screening requirement
proposed for Part 2 of the application.
b. Representative data (Part 2 of
application). The NURP study showed
that pollutant concentrations in urban
runoff can exhibit significant variation.
Pollutant concentrations in such
discharges vary during storm events and
from storm event to storm event. Given
the complex, variable nature of storm
water discharges from municipal
systems, EPA favors a permit scheme
where the collection of representative
data is primarily a task that will be
accomplished through monitoring
programs during the term of the permit.
Permit writers have the necessary
flexibility to develop monitoring
requirements that more accurately
reflect the true nature of highly variable
and complex discharges.
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40050 Federal Register / Vol. 55. No. 222 / Friday. November 16, 1990 / Rules and Regulations
Today's rule provides for an initial
assessment of the quality of discharges
from municipal separate storm sewers
based primarily on source identification
measures and existing information
received in the permit application. This
information will be used to begin to
characterize system discharges. The
analysis developed under this approach
will not rely soley on sampling data
collected during the application process,
but will also incorporate existing data
bases such as the one developed under
the NURP study. Today's rule requires
that some quantitative data will be
collected to ensure the system
discharges can be appropriately
represented by the various existing data
bases and to provide a basis for
developing a monitoring plan to be
implemented as a permit condition.
Today's rule requires that quantitative
data be submitted for discharges from
selected storm events at between 5 and
10 outfalls or field screening points. The
municipality will recommend and the
Director will then designate the outfalls
or field screening points as
representative of the commercial,
residential and industrial land use
activities of the drainage area
contributing to the system, on the basis
of information received in part 1 of the
application. The applicant will be
required to collect samples of a storm
discharge from three storm events
occurring one month apart for each
designated outfall or field screening
point. This is a modification to the
December 7,1888, proposal wherein
only one of the 5 to 10 outfalls was to be
sampled during three storm events, and
the remaining sampled only once. This
requirement may be modified by the
Director if the type and frequency of
storm events require different sampling.
The Director may require samples of
discharge" to be collected during snow
melts or during specified seasons. The
Director may also require additional
testing during a single event if it is
unlikely that there will be three storm
events suitable for sampling during the
year. Furthermore, the Director may
allow exemptions to the three storm
event requirement when climatic
conditions create good cause for such
exemptions; for example, arid regions or
areas experiencing drought conditions
during the period when applications are
developed could be exempted.
EPA has added requirements to
sample more storm events in response to
comments that the sampling procedure
proposed would not necessarily yield
representative data. Commenters
indicated that: rain events of different
m.cnsily may yield different levels and
types of pollutants; a rain event after a-
dry spell of several months will not be
representative when compared to rain
events occurring closer, together, due to
the build up of constituents; one sample
may reflect short term effects such as
improper disposal rather than long term
effects; and thatTain events are
generally too variable to rely on the
limited sampling as proposed. Clearly
the data collected from sampling storm
water discharges has a tendency to vary
greatly; The more sampling that is
accomplished, the greater extent to
which this variability may be accounted
for and appropriate management
programs developed.
In selecting the amount of data to be
collected during the permit application
process, EPA has attempted to balance
the usefulness of this data against the
economic and logistical constraints in
actually obtaining it. In some cases the
data obtained will support initial
loading and concentration estimates
obtained using various modeling
techniques, from which appropriate
permit conditions can be developed.
Data obtained may be supplemented
with further data collection during the
term of the permit.
EPA believes that the requirement
that selected major municipal outfalls or
"field screening points" be sampled for
more than one event will provide
verification that the characterization of
discharge is valid. Where an, ongoing
sampling program is defined for the term
of the permit, samples taken during the
first few years of this period can be used
to verify the application results. If a
municipality or an industry questions
the conclusions drawn from the
characterization sampling, it may at its
discretion choose to perform additional
sampling to either confirm or dispel
these concerns.
All samples collected will be analyzed
for all pollutants listed in Table H,
(organic pollutants), and Table III, (toxic
metals, cyanide and total phenol) of
appendix D of 40 CFR part 122, and for
the pollutants listed in Table M-l
below:
Table M-l
... Fecal coliform.
Pa
Total suspended solids Total dissolved solids.
(TSS).
COD..™....™ ................... BOD..
Oil and grease ...
Fecal streptococcus..
Dissolved phosphorus
Total ammonia plus Total phosphorus.
organic nitrogen.
Total Kjeldahl nitrogen— Nitrate plus nitrite.
A portion of the NURP program
involved monitoring 120 priority
pollutants in storm water discharges
from lands used for residential,
commercial and light industrial
activities. The NURP program excluded
testing for asbestos and dioxin. Results
for seven other organic priority
. pollutants were not considered valid
due to changes in, or constraints on test
methods. Seventy-seven priority
pollutants were detected in samples of
storm water discharges from lands used
for residential, commercial and light
industries taken during the NURP study,
including 14 inorganic and 63'organic
pollutants. Table M-2 shows the priority
pollutants which were detected in at
least ten percent of the discharge
samples which were sampled for
priority pollutants.
TABLE M-2.—PRIORITY POLLUTANTS DE-
TECTED IN AT LEAST 10% OF NURP
SAMPLES
[In percent]
Metals and Inorganics
Antimony ,
Arsenic .....
Beryllium
Cadmium
Chromium
Copper
Cyanides
Lead
Nickel*.—
Selenium
Zinc
Pesticides:
Alpha-hexachlorocyclohexane
Alpha-endosulfan
Chlofdano
Lindane —•
Halogenated aliphatics:
Methane, dictilofo-
Phenols and cresote
Phenol «...
Phenol, pentachtoro-
Phenol, 4rnitro —
Phthalate esters':
Phthalate, tts(2-ethylhexyl)
Potycydic aromatic hydrocarbons:
Chrysefte
Fluoranthene ,
Phenanthrene
Pyrena ,
Frequency
of detection
13
52
12
48
56
9,1
23
94
43
11
94
20
19
17
15
11
14
19
10
22
10
16
12
15
The NURP data also showed a
significant number of these samples
exceeded various freshwater water
quality criteria. The exceedence of
water quality criteria does not
necessarily imply that an actual
violation of standards will exist in the
receiving water body in question.
Rather, the enumeration of exceedences
serves as a screening function to
identify those constituents: whose
presence in urban storm water runoff '
may warrant high, priority fdr further
evaluation.
Members of this group represent all of
the major organic chemical fractions
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Federal Register / Vol. 55. No. 222 / Friday. November 16. 1990 / Rules and Regulations 40051
found in Table II of appendix D of 40
CFR part 122 (volatiles, acid compounds,
base/neutrals, pesticides). Today's rule"
requires testing 'for all organic
constituents in Table II rather than
limiting the sampling requirements to
the 24 toxic constituents found in the
NURP study beqause they will provide a
better description of the discharge at
essentially the same cost. (The cost of
analyzing samples for organic chemicals
strongly depends on the number of
major organic chemical'fractions tested).
The NURP study focused on
characterizing storm water discharges
from lands used for residential,
commercial and light industrial
activities. In general, the NURP study
did not focus on other sources of
pollutants to municipal separate storm
sewer systems and, therefore, does not
reflect all potential pollutants that may
be present in discharges from municipal
separate storm sewer systems.
The sampling requirements for the
permit application address a limited
number of sampling locations but
require analysis for a wide range of
pollutants. Sampling for a wide range of
pollutants as a permit application
requirement should provide permit
writers with appropriate data to target
more specific pollutants when
developing requirements for a
monitoring program during the term of
the permit.
Numerous commenters stated that
monitoring for all priority pollutants
seemed excessive. However, EPA is
convinced that it is more appropriate for
permit conditions to focus on and
prioritize particular pollutant problems
after data covering a broad spectrum of
pollutants are developed. As noted
above, NURP identified 77 priority
pollutants in urban runoff, but only from
residential, commercial, and light
industrial (e.g. industrial parks) areas.
One municipal entity stated that this
approach is a reasonable and realistic
means of providing some useful baseline
data, while others recommended
sampling a variety of parameters that
are included in Tables M-l and M-2.
Another municipal entity stated that
characterization of outfall discharge
quality during storm events is necessary
as a means of targeting source control
activities.
EPA is working with the United States
Geological Survey {USGS) to evaluate
the availability of USGS technical
assistance to municipalities through
cooperative funding programs to aid in
collecting representative quantitative
data of storm water discharges from
municipal systems.
USGS data collection programs with
municipalities typically include storm
water discharge samples obtained at
various times during a storm hydrograph
event Various USGS field procedures
can be used to obtain discharge data for
pipes, culverts, etc., typically found in
urban areas. Pollutant models can be
calibrated with data and long-term
rainfall records to simulate the quality
of system discharges and compared to
other storm water models.
In .addition, EPA recognizes that many
municipalities have participated in
studies, such as NURP, that involve
sampling of urban runoff as well as
other components of discharges from
municipal separate storm sewer
systems. All existing storm water
sampling data along with relevant water
quality data, sediment data, fish tissue
data or biosurvey data taken over the
last ten years is considered relevant
and, under today's rule, must be
submitted with part 1 of the application.
Sampling data that is submitted must be
accompanied with a narrative
description of the drainage area served
by the outfall monitored, a description
of the sampling and quality control
program, and the location of receiving
water monitoring.
EPA requested comments on the use
of existing data, such as that generated
under the NURP study, to satisfy the
requirement of providing representative
sampling data. Commenters did not
agree on the value of NURP results as an
indicator of representative data. Several
commenters expressed the view that
existing data could be used to satisfy in
whole or in part the representative
sampling requirements of the storm
water permit application. However,
commenters generally did not offer
suggested criteria that could be used to
verify the validity of existing data. One
commenter believed that intensive
sampling over a period of ten years in 12
basins, when combined with NURP
data, would be adequate.
One commenter supported the use of
data, such as that obtained from the
NURP study, to target sampling
programs. EPA supports such a
methodology and has retained this
portion of fiie proposed discharge
characterization component. EPA
received strong support from an
•jnvironmental group for retaining this
information requirement'in part 1 of the
application.
In light-of these comments EPA
believes it is appropriate to retain the
representative sampling requirements
without resorting to the use of existing
data exclusively. Because of the
inherent variability in reliability and
applicability of existing data, EPA is
convinced that a nationally consistent
methodology for collecting data is
appropriate. This data can then be used
in conjunction with other existing data
arid models to -develop appropriate site
specific management programs and
more generalized management program
strategies. Where existing data and data
collected under today's rule varies or
does not match, further sampling under
the term of the permit will be
accomplished to more accurately assess
the discharge of pollutants.
c. Loading and Concentration
Estimates (part 2 of application}. The
assessment of the water quality impacts
of discharges from municipal separate
storm sewer systems on receiving
waters requires the analysis of both
pollutant loadings and concentrations of
pollutants hi discharges.
The loading and concentration
estimates in today's rule will be used to
evaluate two types of water quality
impacts: (1) Short-term impacts; and (2)
long-term impacts. Specifically, the
regulation requires estimates of the
annual pollutant load of the cumulative
discharges to waters of the United
States from municipal outfalls and the
event mean concentration of the
cumulative discharges to waters of the
United States municipal outfalls during
a storm event for BODs, COD, TSS,
dissolved solids, total nitrogen, total
ammonia plus organic nitrogen, total
phosphorus, dissolved phosphorus,
cadmium, copper, lead, and zinc.
Estimates shall be accompanied by a
description of the procedures for
estimating constituent loads and
concentrations, including any modelling,
data analysis, and calculation methods.
Municipalities have options in the use of
methodologies, including those
presented in NURP for calculating loads.
Short term impacts from discharges
from municipal separate storm sewers
involve changes in water quality that
occur during and shortly after storm
events. Examples of short-term impacts
that can lead to impairments include
periodic dissolved oxygen depression
due to the oxidation of contaminants,
high bacteria levels, fish kills, acute
effects of toxic pollutants, contact
recreation impairments and loss of
submerged macrophytes.
Characterization of instream pollutant
concentrations based on estimated
pollutant concentrations in system
discharges are important for evaluating
these types of impacts.
Long-term water quality impacts from
discharges from municipal separate
storm sewers may be caused by
contaminants associated with
suspended solids that settle in receiving
water sediments and by nutrients which
enter receiving water systems vith long
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48052 Federal Register / Vol. 55, No. 222 / Friday, November IB; 1990 / Rules and Regulations
retention times. Pollutant loading data
are important for evaluation, of
impairments such as loss of storage
capacity in stre'a'ms, estuaries,
reservoirs, lakes and bays, lake
eutrophication caused by high nutrient
loadings, and destruction of benthic
habitat. Other examples of the long-term
water quality impacts include depressed
dissolved oxygen caused by the
oxidation of organics in bottom
sediments and biological accumulation
of toxics as a result of uptake by
organisms in the food chain. An
estimate of annual pollutant loading
associated with discharges from'
municipal storm water sewer systems is
necessary to evaluate the magnitude
and severity of the environmental
impacts of such discharges and to
evaluate the effectiveness of controls
which are imposed at a later time.
Municipal storm water sewer systems
generally handle runoff from large
drainage areas and the sources of
pollution are usually very diffuse. The
concentrations of many pollutants in
discharges from these systems are often
low relative to many industrial process
and POTW discharges. The water
quality impacts of low concentration
pollution discharges tend to be
cumulative and need to be evaluated in
terms of aggregate loadings as well as
pollutant concentrations. A site-specific ,
loading analysis can be used to evaluate
the relative contribution of various
pollutant sources.
7. Storm Water Quality Management
Plans
Today's rule facilitates the
development of site-specific permit
conditions by requiring large and
medium municipal permit applicants to
submit, along with other information, a
description of existing structural and
non-structural prevention and control
measures on discharges of pollutants
from municipal storm sewers in part I of
the permit application. Section
122,20(d)(2)(iv) requires the applicant to
identify in part 2 of the application, to
the degree necessary to meet the MEP
standard, additional prevention or
control measures which will be
implemented during the life of the
permit. Although, in many cases, it will
not be possible to identify all prevention
and control measures that are
appropriate as permit conditions, EPA
believes that the process of identifying
components of a comprehensive
prevention and/or control program
should begin early and that applicants
should be given the opportunity to
identify and propose the components of
the program that they believe are
appropriate for first preventing or
controlling discharges of pollutants.
• As noted earlier, EPA recognizes that
problems associated with storm water,
combined sewer overflows (CSOs) and
infiltration and inflow (I&I) are all inter-
related even though they are treated
somewhat differently upder the law.
EPA believes that it is important to
begin linking these programs and
activities and, because of the potential
cost to local governments, to investigate
the use of innovative, nontraditional
approaches to reducing or preventing
contamination of storm water. The
application process for developing
municipal storm water management
plans provides an ideal opportunity
between steps 1 and 2 for considering
the full range of nontraditional,
preventive approaches.
The permit application requirements
in today's rule require the applicant or
co-applicants to develop management
programs for four types of pollutant
sources which discharge to large and
medium municipal storm sewer systems.
Discharges from large and medium
municipal storm sewer systems are
usually expected to be composed
primarily of: (1) Runoff from commercial
-and residential areas; (2) storm water
runoff from industrial areas; (3) runoff
from construction sites; and (4) non-
storm water discharges. Part 2 of the
permit application has been designed to
allow the applicant the opportunity to
propose MEP control measures for each
of these components of the discharge.
Discharges from some municipal
systems may also contain pollutants
from other sources, such as runoff from
land disposal activities (leaking septic
tanks, landfills and land application of
sewage sludge). Where other sources,
such as land disposal, contribute
significant amounts of pollutants to a
municipal storm sewer system,
appropriate control measures should be
included on a site-specific basis.
Proposed management programs will
then be evaluated in the development of
permit conditions.
There is some overlap in the manner
in which these pollutant sources are
characterized and their sources
identified. For instance, improper
disposal of oil into storm drains is often
associated with do-it-yourself
automobile oil changes in residential
areas, or improper application or over-
use of herbicides and pesticides in
residential areas can also occur in
industrial areas. Also, some control
measures will reduce pollutant loads for
multiple components of the municipal
storm sewer discharge. These measures
should be identified under all
appropriate places in the application; as
discussed below,-however^ double'
counting -of pollutant removal must be
avoided when the total assessment of
control measures is performed.
Although many land use programs
have multiple purposes, including the
reduction of pollutants in discharges
from municipal separate storm sewer
systems, the proposed management
programs in today's rule are intended to
address only those controls which can
be implemented by the permit applicant
or co-applicants. EPA cannot abrogate
its responsibilities under the CWA to
implement the NPDES permit program
by relying on pollution control programs
that are outside the NPDES program. For
example, municipal permit management
programs may not rely exclusively on
erosion or sediment control laws for
implementing that portion of
management programs that address
•discharges from construction sites,
unless such laws implement NPDES
permit program requirements entirely
and that such implementation is a part
of the permit.
EPA anticipates that storm water
management programs will evolve and
mature over time. The permits for
discharges from municipal separate
storm sewer systems will be written to
reflect changing conditions that result
from program development and
implementation and corresponding
improvements in water quality. The
proposed permit applications will
require applicants to provide a
description of the range of control
measures considered for implementation
during the term of the permit. Flexibility
in developing permit conditions will be
encouraged by providing applicants an
opportunity to identify in the permit
application priority controls appropriate
for the initial implementation of
management programs. Many
commenters endorsed the flexible site-
specific storm water program approach
as proposed as a method for addressing
regional water quality control programs
in a cost effective manner. To this
extent, EPA agrees with one
municipality that management programs
should focus on more serious problems
and sources of pollutants identified in
the municipal system. However, EPA
believes that to implement section
402(p)(3), comprehensive storm water
management programs which address a
number of major sources of pollutants to
a system are necessary. Municipal
programs should not be focused solely
on a single source of pollution, such as
illicit connections.
One commenter maintained that
management program development
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Federal Register / Vol. 55. No. 232 / Friday. November 16. 1990 / Rules and Regulations 48053
should be flexible enough to allow for
consideration of what is attainable
based on the. area's climate, vegetation.
hydrology, and land uses. EPA agrees
with this comment. Some strategies for
reducing pollutants in the northeast will
not be practical in the southwest, such
as management programs for deicing
activities. The permit application
process will determine what strategies
are appropriate in different locations.
Several commenters supported
addressing storm water pollutant
problems through management practices
or programs rather than end of pipe
controls or treatment. EPA agrees with
this comment to the extent that storm
water management practices are a
general theme of this rulemaking with
regard to municipal permits. However,
there will be cases where such
discharges are best addressed through
technology such as retention, detention
or infiltration ponds.
One commenter reacted unfavorably
to the flexible site-specific management
plan approach stating that there is no
hard criteria upon which to judge the
adequacy of programs. Another
commenter felt that there should be a
BAT standard for municipal permits.
Another commenter stated that the rule
should contain specific BMPs that the
permittee must comply with. EPA
disagrees with these comments. The
Clean Water Act requires municipalities
to apply for permits that will reduce
pollutants in discharges to the maximum
extent practicable and sets out the types
of controls that are contemplated to deal
with storm water discharges from
municipalities. The language of CWA
section 402(p)(3) contemplates that,
because of the fundamentally different
characteristics of many municipalities,
municipalities will have permits tailored
to meet particular geographical,
hydrological, and climatic conditions.
Management practices and programs
may be incorporated into the terms of
the permit where appropriate. Permit
conditions, which require that storm
water management programs be
developed and implemented or require
specific practices, are enforceable in
accordance with the terms of the permit.
EPA disagrees with the notion that this
regulation, which addressed permit
application requirements, should create
mandatory permit requirements which
may have no legitimate application to a
particular municipality. The whole point
of the permit scheme for these
discharges is to avoid inflexibility in the
types and levels of control. Further, to
the degree that such mandatory
requirements may be appropriate, these
requirements should be established
under the authority of section 402{p)(6)
of the CWA and not in this rulemaking,
which addresses permit application
requirements.
Some commenters suggested that
management programs should be
developed as part of the permit
conditions and not as part of the permit
application. EPA agrees that
management programs and their ongoing
development should be part of the
permit term. However, EPA is
convinced, and many commenters agree,
that the permit application should
contain information on what the
permittee has done to date and what it
proposes and plans to do during the
permit term based upon its discharge
characterization and source
identification data. This is a reasonable
and logical approach and one that meets
the intent and letter of section 402(p)(3)
of the CWA. As stated above, this
would be an appropriate method for
implementing storm water management
programs that should mature and evolve
over time.
Applicants will propose priorities
based on a consideration of appropriate
controls including, but not limited to,
consideration of controls that address:
reducing pollutants to municipal
separate storm sewer system discharges
that are associated with storm water
from commercial and residential areas
{§ 122.26(d}(2Xiv)(A)); illicit discharges
and illegal disposal
(§ 122.26{d)(2)(iv)(B}); storm water from
industrial areas (§ 122.26(d)(2)(iv)(C));
and runoff from construction sites
(§ 122.26(d)(2)(iv)(D)). Permits for
different municipalities will place
different emphasis on controlling
various components of discharges from
municipal storm sewers. For example,
the potential for cross-connections (such
as municipal sewage or industrial
process wastewater discharges to a
municipal separate storm sewer) is
generally expected to be greater in
municipalities with older developed
areas. On the other hand, municipalities
with larger areas of new development
will have a greater opportunity to focus
controls to reduce pollutants in storm
water generated by the area after it is
developed, discharges from construction
sites, and other planning activities.
EPA requested comments on the
process and methods for developing
appropriate priorities in management
programs proposed in applications and
how the development of these priorities
can be coordinated with controls on
other discharges to ensure the
achievement of water quality standards
and the goals of the CWA.
Discharges from diffuse sources in
residential areas was recognized by
several commenters as a significant
source of pollutants. Accordingly, these
elements of the management plans have
been retained. In conjunction with the
importance of developing programs for
illicit connections, numerous
commenters stated that education
programs are a priority. Another
commenter emphasized that ordinances
prohibiting such discharges and their
enforcement is a crucial means of a
successful program in this regard. EPA
agrees with these comments and
consequently will retain those portions
of management program development
that include a description of a program
for educational activities such as public
information for the proper disposal of oil
and toxic materials and the use of
herbicides, pesticides and fertilizers.
Some commenters noted that
discharge characterization is necessary
for development of appropriate
management plans. EPA agrees with
these comments and has retained the
discharge characterization components
in this rulemaking. However, EPA
disagrees that the results of all
discharge characterization procedures
(i.e., part 1 and part 2] are necessary to
describe and propose a program as
required in part 2 of the application. The
application of various models is
available to permit applicants, where
needed, to develop appropriate
management programs. All available
site specific discharge characterization
data should be available to the permit
writer to draft appropriate conditions for
the term of the permit.
One commenter noted that an
important aspect of developing
management plans is establishing the
necessary legal authority to improve
water quality. EPA agrees with this
comment and has retained those aspects
of the regulation which call for
development and attainment of
adequate legal authority in both parts of
the municipal application.
One commenter stated that programs
should address previously identified
water quality problems in other
programs that are required by section
304(1) of the CWA. EPA agrees that
identified water quality problems need
to be addressed by management
programs, and the municipal permit
application will call for an identification
oif these waters. However, EPA does not
endorse addressing these waters to the
exclusion of all others within the
boundaries of the municipal separate
storm sewer system. Some waters may
experience substantial degradation after
rain events and still not be listed under
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48054 Federal Register / Vol. 55, No. 222 / Friday. November 16, 1990 / Rules and Regulations
section 304(1). Further, water quality
Impacts in listed waters may not be
related to storm water discharges, while
olh'er non-listed waters do have water
quality impacts from storm water
discharges. Similarly, EPA agrees with
one commenter that it may be desirable.
to focus attention and resources on
certain problem watersheds within a
municipality, and controls may be
imposed and programs prioritized on
that basis. However, such a focus
should not be to the exclusion of other
waters and watersheds that have water
quality problems (although less
troublesome) traceable to storm water
discharges, The CWA requires that
permits address discharges to waters of
the United States, not just waters
previously targeted under special
programs.
Some commenlers expressed concern
that the permit application requires the
design of management programs before
knowing what will be in the permits.
EPA disagrees with the thrust of this
comment, that is that the order of
requirements is inappropriate. The
permit applicant will have two years to
develop proposed plans which can be
considered by permit writers in the
development of the permit. Based upon
a consideration of the management
program proposed by the municipality
and other relevant information, permits
can be tailored for individual programs.
One commenter stated that the
cornerstone of management programs
are inspection and enforcement
programs. EPA agrees that these two
elements are important components.
Without inspection and enforcement
mechanisms the programs will
undoubtedly falter. Accordingly these
requirements in the description of
'management programs in the permit
application have been retained. In a
similar vein, one commenter emphasized
the importance of developing legal
authority, financial capability, and
administrative infrastructure. EPA
agrees with this comment and has
retained those aspects of the regulation
that call for a description of applicants
plans and resources in these areas.
One commenter stressed that control
of discharges into the municipal system
from industries is an important goal of
municipal storm water management
programs. EPA agrees with this
comment and has retained the proposed
description of management programs to
address discharges from industrial
sources. Other commenters identified
Industries as the principal contributors
of pollutants to municipal separate
storm sewer systems.
In addition, EPA will continue to
evaluate procedures and methods to
control storm water discharges to the
extent necessary to mitigate impacts on
water quality in the studies required
under section 402(p)[5) of the CWA. One
purpose of these studies will be to
evaluate the costs and water quality
benefits associated with implementing
these procedures and methods. This
evaluation will address a number of
factors which impact the
implementation costs associated with
these programs, such as the extent to
which similar municipal ordinances are
currently being implemented, the degree
to which existing municipal programs
(such as flood management programs or
construction site inspections) can be
expanded to address water quality
concerns, the resource intensiveness of
the control, and whether the control
program will involve public or private
expenditures. This information, along
with information gained during permit
implementation will aid in the dynamic
long-term development of municipal
storm water management programs.
a. Measures to reduce pollutants in
runoff from commercial and residential
areas. The NURP program evaluated
runoff from lands primarily dedicated to
residential and commercial activities.
The areas evaluated in the study reflect
some other activities, such as light
industry, which are commonly dispersed
among residential and commercial
areas. The NURP study selected
sampling locations that were thought to
be relatively free of illicit discharges
and storm water from heavy industrial
sites including storm water runoff from
heavy construction sites. Of course, in a
study such as NURP it was impossible
to totally isolate various contributions to
the runoff. In developing the permit
application requirements in today's rule
EPA has, in general, relied on the NURP
definition of urban runoff—runoff from
lands used for residential, commercial
and light industrial activities.
NURP and numerous other studies
have shown that runoff from residential
and commercial areas washes a number
of pollutants into receiving waters. Of
equal importance is the volume of storm
water runoff leaving urban areas during
storm events. Large intermittent
Volumes of runoff can destroy aquatic
habitat. As the percentage of paved
surfaces increases, the volume and rate
of runoff and the corresponding
pollutant loads also increase. Thus, the
amount of storm water runoff from
commercial and residential areas and
the pollutant loadings associated with
storm water runoff increases a»
development progresses; and they
remain at an elevated level for the
lifetime of the development.
Proposed § 122.26(d)(2)(iv)(A) requires
municipal storm sewer system
applicants to provide in part 2 of the
application a description of a proposed
management program that will describe
priorities for implementing management
programs based on a consideration of
appropriate controls including:
• A description of maintenance
activities and a maintenance schedule
for structural controls;
• A description of planning
procedures including a comprehensive
master plan to control after construction
is completed, the discharge of pollutants
from municipal separate storm sewers
which receive discharges from new
development and significant
redevelopment after construction is
completed (in response to comment this
contemplates an engineering policy and
procedure strategy with long term
planning);
• A description of practices for
operating and maintaining public
highways and procedures for reducing
the impact on receiving waters of such
discharges from municipal storm sewer
system;
• A description of procedures to
assure that flood management projects
assess the impacts on the water quality
of receiving water bodies; and
• A description of a program to
reduce to the maximum extent
practicable, pollutants in discharges
from municipal separate storm sewers
associated with the application of
pesticides, herbicides and fertilizer
which will include, as appropriate,
controls such as educational activities
and other measures for commercial
applicators and distributors, and
controls for application in public right-
of-ways and at municipal facilities.
Water quality problems caused by
municipal storm sewer discharges will
generally be most acute in heavily
developed areas. Prevention measures
may be desirable and cost effective.
However, structural control measures
may also be effective, although
opportunities for implementing these
measures may be limited in previously
developed areas. Commonly used
structural technologies include a wide
variety of treatment techniques,
including first flush diversion systems,
detention/infiltration basins, retention
basins, extended detention basins,
infiltration trenches, porous pavement,
oil/grit separators, grass swales, and
swirl concentrators. A major problem
associated with sound storm water
management is the need for operating
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Federal Register / Vol. 55. No. 222 / Friday. November 16, 1990 / Rules amT Regulations 48055
and maintaining the system for its
expected life.
The unavailability of land in highly
developed areas often makes the use of
structural controls infeasible for
modifying many existing systems. Non-
structural practices can play a more
important role. Non-structural practices
can include erosion control, streambank
management techniques, street cleaning
operations, vegetation/lawn
maintenance controls, debris removal,
road salt application management and
public awareness programs.
As noted above, the first component
of the proposed program to reduce
pollutants in storm water from
commercial and residential areas which
discharge to municipal storm sewer
systems is to describe maintenance
activities and schedule. The second
component of the proposed program to
reduce pollutants in storm water from
commercial and residential areas which
discharge to municipal storm sewer
systems provides that applicants
describe the planning procedures and a
comprehensive master plan that will
assure that increases of pollutant
loading associated with newly
developed areas are, to the maximum
extent practicable, limited. These
measures should address storm water
from commercial and residential areas
which discharge to the municipal storm
sewer that occur after the construction
phase of development is completed.
Controls for construction activities are
addressed later in today's rule. One
commenter noted the feasibility of
developing management plans for newly
developing areas. EPA agrees with this
comment and has retained that portion
of the regulation that deals with a
description of controls for areas of new
development. Similarly, one
municipality stressed the importance
and achievability of addressing storm
water discharges from construction
sites.
As urban development occurs, the
volume of storm water and its rate of
discharge increases. These increases are
caused when pavement and structures
cover soils and destroy vegetation
which otherwise would slow and absorb
runoff. Development also accelerates
erosion through alteration of the land
surface. Areas that are in the process of
development offer the greatest potential
for utilizing the full range of structural
and non-structural best management
practices. If these measures are to
provide controls to reduce pollutant
discharges after the area has been
developed, comprehensive planning
must be used to incorporate these
measures as the area is in the process of
developing. These measures offer an
important opportunity to limit increases
in pollutant loads.
The third component of
§ 122.26(d)(2}(iv){A) provides a
description of practices for operating
and maintaining public roads and
highways and procedures for reducing
the impact on receiving waters of
discharges from municipal storm sewer
systems. General guidelines
recommended for managing highway
storm water runoff include litter control,
pesticide/herbicide use management,
reducing direct discharges, reducing
runoff velocity, grassed channels, curb
elimination, catchbasin maintenance,
appropriate streetcleaning, establishing
and maintaining vegetation,
development of management controls
for salt storage facilities, education and
calibration practices for deicing
application, infiltration practices, and
detention/retention practices.
The fourth component of
§ 122.26(d)(2)(ivKA) provides that
applicants identify procedures that
enable flood management agencies to
consider the impact of flood
management projects on the water
quality of receiving streams. A well-
developed storm water management
program can reduce the amount of
pollutants in storm water discharges as
well as benefit flood control objectives.
As discussed above, increased
development can increase both the
quantity of runoff from commercial and
residential areas and the pollutant load
associated with such discharges.
Disturbing the land cover, altering
natural drainage patterns, and
increasing impervious area all increase
the quantity and rate of runoff, thereby
increasing both erosion and flooding
potential. An integrated planning
approach helps planners make the best
decisions to benefit both flood control
and water quality objectives.
The fifth component of
§ 122.26(d)(2](ivKA) would provide that
municipal applicants submit a
description of a program to reduce, to
the maximum extent practicable,
pollutants in discharges from municipal
separate storm sewers associated with
the application of pesticides, herbicides
and fertilizer. Such a program may
include controls such as educational
activities and other measures for-.
commercial applicators and distributors
and controls for application in public
rights-of-way and at municipal facilities.
Discharges of these materials to
municipal storm sewer systems can be
controlled by proper application of these
materials. Some commenters noted that
insecticides used in residential areas are
a probable source of pollutants in storm
water discharges from residential areas,
as well as salting and other de-icing
activities. In response to this comment,
part of a community management plan
may include controls or education
programs to limit the impacts of these
sources of pollutants. One commenter
noted that many communities already
have household toxic disposal programs.
Where appropriate these can be
incorporated into municipal
management programs.
Some commenters suggested
substituting the management program
description for residential and
commercial areas with a simple
identification of applicable management
practices. EPA agrees that identification
of appropriate management practices is
a critical component of a program
description for these areas. In essence,
this is what the program description is
designed to achieve. However, for tlw-
reasons discussed in greater detail
above, EPA is convinced that an
appropriate program must address all of
the components of the management
program for residential and commercial
areas that are outlined in today's rule.
Further, for the purposes of writing a
permit with enforceable conditions, the
application should identify a schedule to
implement management practices. The
applicant should be able to estimate the
reduction in pollutant loads as a result
of the development of certain
management practices and programs
(§ 122.26{d)(2)(v). A program may also
include public education programs,
which are not necessarily viewed as
traditional BMPs.
b. Measures for illicit discharges and
improper disposal. The CWA requires
that NPDES permits for discharges from
municipal storm sewers "shall include a
requirement to effectively prohibit non-
stormwater discharges into the storm
sewers." In today's rule, EPA will begin
to implement this statutory mandate by
focusing on two types of discharges to
large and medium municipal separate
storm sewer systems. See
§ 122.26(d)(l)(iv)(D) and (d)(2Kiv)(B).
One type of non-storm water discharges
are illicit discharges which are plumbed
into the system or that result from
leakage of sanitary sewage system. The
other class of non-storm water
discharges result from the improper
disposal of materials such as used oil
and other toxic materials.
Illicit discharges. In some
municipalities, illicit connections of
sanitary, commercial and industrial
discharges to storm sewer systems have
had a significant impact on the water
quality of receiving waters Although the
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48056 Federal Register / Vol. 55. No. 222 / Friday. November 16. 1990 / Rules and Regulations
NURP study did not emphasize
identifying illicit connections to storm
sewers other than to assure that
monitoring sites used in the study were
free from sanitary sewage
contamination, the study concluded that
illicit connections can result in high
bacterial counts and dangers to public
health. The study also noted that
removing such discharges presented
opportunities for dramatic
Improvements in the quality of urban
storm water discharges.
Other studies have shown that illicit
connections to storm sewers can create
severe, wide-spread contamination
problems. For example, the Huron River
Pollution Abatement Program inspected
660 businesses, homes and other
buildings located in Washtenaw County,
Michigan and identified 14% of the
buildings as having improper storm
drain connections. Illicit discharges
were detected at a higher rate of 60% for
automobile related businesses, including
service stations, automobile dealerships.
car washes, body shops and light
Industrial facilities. While some of the
problems discovered in this study were
the result of improper plumbing or illegal
connections, a majority were approved
connections at the time they were built.
Many commenters emphasized the
identification and elimination of illicit
connections as a priority, including
leakage from sanitary sewers. EPA
agrees with these comments and intends
to retain this portion of the program
without modification.
A wide variety of technologies exist
for detecting illicit discharges. The
effectiveness of these measures largely
depends upon the site-specific design of
the system. Under today's rule, permit
applicants would develop a description
of a proposed management program,
including priorities for implementing the
program and a schedule to implement a
program to identify illicit discharges to
the municipal storm sewer system. This
rutcmaking will require the initial
priorities for analyzing various portions
of the system and the appropriate
detection techniques to be used.
Improper disposal. The permit
application requirements for municipal
storm sewer systems include a
requirement that the municipal permit
applicant describe a program to assist
and facilitate in the proper management
of used oil and toxic materials. Improper
management of used oil can lead to
discharges to municipal storm sewers
that in turn may have a significant
Impact on receiving water bodies. EPA
estimates that, annually, 207 million
gallons of used oil. including-135 million
gallons of used oil from do-it-yourself
automobile oil changes, are disposed of
improperly. An additional 70 million
gallons of-used oil, most coming from
service stations-and repair shops, are
used for road oiling. Many commenters
emphasized the elimination of
discharges composed of improperly
disposed of oil and toxic material. One
commenter identified motor oil as the
major source of oil contamination and
that EPA needs to encourage proper
disposal of used oil. Several other
commenters emphasized the importance
of recycling programs for oil. EPA agrees
with these comments and intends to
retain this portion of the program
without modification. One commenter
identified public awareness and timely
reporting of illegal dumping as critical
components of this portion of the
program. EPA agrees with this comment
and intends for management programs
to deal with this problem.
c. Measures to reduce pollutants in
storm water discharges through
municipal separate storm sewers from
municipal landfills, hazardous waste
treatment, disposal and recovery
facilities that are subject to section 313
of title III of SARA. As discussed in
section VI.C of today's preamble,
industrial facilities that discharge storm
water through a large or medium
municipal separate storm sewer system
are required to apply for a permit under
§ 122.26(c) or seek coverage under a
promulgated general permit. Today's
rule also requires the municipal storm
sewer permittee to describe a program
to address industrial dischargers that
are covered under the municipal storm
sewer permit. Today's- rule requires the
municipal applicant to identify such
discharges (see source identification
requirements under § 122.26(d)(2)(ii)),
provide a description of a program to
monitor pollutants in runoff from certain
industrial facilities that discharge to the
municipal separate storm sewer system,
identify priorities and procedures for
inspections, and establish and
implement control measures for such
discharges. Should a municipality
suspect that an individual discharger is
discharging pollutants in storm water
above acceptable limits, and the owner/
operator of the system has no authority
over the discharge, the municipality
should contact the NPDES permitting
authority for appropriate action. Two
example of possible action are: if the
facility already has an individual permit,
the permit may be reopened and further
controls imposed; or if the facility is
covered by a promulgated genera!
permit, then an individual site-specific
permit application may be required.
In the December 7.1988, proposal,
EPA requested comments concerning
what storm water discharges from
industrial facilities through municipal
systems should be monitored., One of the
proposed approaches was to require
data on portions of the municipal system
which receive storm water from
facilities which are listed in the
proposed regulatory definition at
§ 122.26(b)(14) of "storm water
discharge associated with industrial
activity" (with the exception of
construction activities and
uncontaminated storm water from oil
and gas operations) which discharge
through the municipal system. However.
given the large number of facilities
meeting this definition that discharge
through municipal systems, a monitoring
program that requires the submission of
quantitative data regarding portions of
the municipal systems receiving storm
water from such facilities may not be
practicable. Such a requirement could.
for some systems, potentially become
the mostresource intensive
requirements in the municipal permit.
Therefore. EPA proposed various ways
to develop appropriate targeting for
monitoring programs.
EPA requested comments on a
requirement that, at a minimum,
monitoring programs address discharges
from municipal separate storm sewer
outfalls that contain storm water
discharges from municipal landfills,
hazardous waste treatment, disposal
and recovery facilities, and runoff from
industrial facilities that are subject to
section 313 of title III of the Superfund
Amendments and Reauthorization Act
of 1986 (SARA). Section 313 of title III
requires that operators or certain
facilities-that manufacture, import,
process, or otherwise use certain toxic
chemicals report annually their releases
of those chemicals to any environmental
media. Section 313(b) of title III specifies
that a facility is covered for the
purposes of reporting if it meets ail of
the following criteria.
• The facility has ten or more full-
time employees;
• The facility is in Standard Industries
Classification (SIC) codes 20 through 39;
• The facility manufactured (including
quantities imported), processed, or
otherwise used a listed chemical in
amounts that exceed certain threshold
quantities during-the calendar year for
which reporting is required.
Listed chemicals include 329 toxic
chemicals listed at 40 CFR 372.45. After
1989, the threshold quantities of listed
chemicals that the facility must
manufacture, import or process (in order
to-trigger the submission-of a release
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Federal Register / Vol. 55, No. 222 / Friday. November 16. 1990 /Rules and Regulations 48057
report) is 25,000 pounds per year. The
threshold for a use other than
manufacturing, importing or processing
of listed toxic chemicals is 10,000
pounds per year. EPA promulgated a
final regulation clarifying these
reporting requirements on February 16,
1988, (53 FR 4500).
EPA received numerous comments
regarding limiting the types of facilities
that are initially subject to monitoring
and municipal management programs.
Numerous municipalities agreed that
focusing on the above facilities is an
appropriate means for setting priorities
for the development of control measures
tp eliminate or reduce pollutants
associated with industrial facilities.
.Commenters agreed that the potential
for toxic materials in discharges is high
because of the high volume of such
materials at these facilities and that
information regarding discharges and
material management practices will be
available through section 313 of SARA.
One commenter noted that building on
an established program will contribute
to establishing an effective storm water
program. Accordingly, EPA has
specified at § 122.26(d)(2)(ii)(C) that the
municipal applicant must describe a
program that identifies priorities and
procedures for inspections and
establishing and implementing control
measures for these facilities.
Several commenters suggested that
these facilities should not be singled out
because the presence of the threshold
amounts of SARA 313 chemicals does
not indicate that significant quantities of
those chemicals are likely to enter the
facility's storm water runoff. Instead it
was suggested that municipalities
should monitor storm sewers as a whole
to determine what chemicals are present
and therefore what facilities are
responsible. EPA disagrees with these
comments. The object of these
requirements is initially to set priorities
for monitoring requirements. Then, if the
situation requires, controls can be
developed and instituted. If a facility is
a member of this class of facilities and
does not discharge excessive quantities
of SARA 313 chemicals, then it may not
be subjected to further monitoring and
controls. As noted above, the selection
of facilities is only a means of setting
priorities for facilities for the
development of municipal plans.
EPA agrees, however, that there will
be other facilities that are significant
sources of pollutants and should be
addressed by municipalities as soon as
possible under managemen programs.
Accordingly, those industrial facilities
that the municipal permit applicant
determines to be contributing a
substantial pollutant loading to the
municipal storm sewer system shall be
addressed in this portion of the
municipal management program.
EPA also requested comments on
monitoring programs for municipal
discharges including the submission of
quantitative data on the following
constituents;
• Any pollutants limited in an effluent
guidelines for the industry
subcategories, where applicable;
• Any pollutant listed in a discharging
facility's NPDES permits for process
wastewater, where applicable;
• Oil and grease, pH, BODS, COD,
TSS, total phosphorus, total Kjeldahl
nitrogen, and nitrate plus nitrite
nitrogen;
• Any information on discharges
required under 40 CFR 122.21(g)(7)(iii)
and (iv).
These are the same constituents that are
to be addressed in individual permit
applicants for storm- water discharges
associated with industrial activity.
Several industries and municipalities
submitted comments on this issue. Some
commenters agreed that these are
appropriate parameters. Some
commenters advised that the ability of
municipalities to implement this aspect
of the program depended on industries
submitting this data. Several industries
provided comments suggesting that the
approach should allow the permittee
flexibility in determining which
parameters are chosen because of the
burdens of monitoring and the
complexity of materials and flows in
municipal systems.
In light of these comments, EPA has
retained § 122.26(d)(2)(iv)(C) as
proposed requiring municipalities to
describe a monitoring program which
utilizes the above parameters.
Monitoring for these parameters
provides consistency with the individual
application requirements for industries,
provides uniformity in municipal
applications, and will narrow the
parameters to conform to the types of
industries discharging into the municipal
systems. Monitoring programs may
consist of programs undertaken by the
municipality exclusively or requirements
imposed on industry by the
municipality, or a combination of
approaches.. Appropriate procedures are
discussed in municipal permit
application guidance.
EPA requested comments on
appropriate means for municipalities to
determine what facilities are
contributing pollutants to municipal
systems. Many commenters responded
with numerous methodologies. Some of
these have been addressed in guidance.
Municipalities will have options in
selecting the most appropriate
methodology given their circumstances
as described in their permit
applications.
EPA initially favors establishing
monitoring requirements to be applied to
those outfalls that directly discharge to
waters of the United States. EPA
received one comment from a
municipality with regard to this issue
which agreed that this was the most
logical approach. Monitoring of outfalls
close to the point of discharge to waters
of the United States is generally
preferable when attempting to identify
priorities for developing pollutant
control programs. However, under
certain circumstances, it may be
preferable to monitor at the point where
the runoff from the industrial facility
discharges to the municipal system. For
example, if many facilities discharge
substantially similar storm water to a
municipal system it may be more
practicable to monitor discharges from
.representative facilities in order to
characterize pollutants in the discharge.
As noted by numerous industries, if
municipal characterization plans reveal
problems from certain industrial
dischargers, then such facilities may be
required to provide further data from
their own monitoring. As noted above,
EPA envisions that this data could then
be used to develop appropriate control
practices or techniques and/or require
individual permit applications if a
general permit covering the facility
proves inadequate.
Comments were also solicited as to
whether end-of-pipe treatment generally
was more appropriate than source
controls for storm water from industrial
facilities which discharge to municipal
systems. Many commenters, including
both municipalities and industries,
stated that source controls are the only
practical and feasible means of
controlling pollutants in storm water
runoff, and specifically opposed the
concept of end-of-pipe treatment or
other controls. Some commenters
maintained that, from an economic and
environmental standpoint, end-of-pipe
treatment may be the only effective
means. One advised that the prompt
cleanup of spills, controlled wash down
of process areas, covering of material
loading areas, storm water runoff
diversion, covered storage areas,
detention basins or other such
mechanisms would prevent storm water
from mixing with pollutants and
possibly discharging them into receiving
waters. Another noted that in the urban
areas, them is little potential for
treatment; consequently, it would seem
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48058 Federal Register / Vol. 55. No. 222 / Friday, November 16, 1990 / Rules and Regulations
that controls and/or retrofitting existing
facilities would be necessary when
violations are found and that citizens
will ba better served by source controls
appropriate to the individual problem.
EPA agrees with these comments to
the extent that source controls and
management programs are the general
thrust of these regulations. However, in
some situations cnd-of-pipe treatment,
tuch as holding ponds, may be the only
reasonable alternative. EPA disagrees
with one industrial commenter that the
municipalities should be almost entirely
responsible for treating municipal
discharges at the end of-the-pipe
without reliance on source controls by
industrial dischargers. Municipal
programs may require controls on
industrial sources with demonstrated
storm water discharge problems. One
industrial association noted that its
member companies already have
incentive to properly handle their
materials and facilities because of other
environmental programs with spill and
erosion controls.
Numerous commenters stated that the
program addressing industrial
dischargers through municipal systems
needs to be clearly defined in order to
eliminate, as much as possible, potential
conflicts between the system operator
and dischargers. EPA has provided a
framework for development of
management plans to control pollutants
from these particular sources. However,
because of the differences in municipal
systems and hydrology nationwide, EPA
is not convinced that program specificity
is an appropriate approach. The concept
of the management program is to
provide flexibility to the permit
applicants to develop regional site
specific control programs.
One commenter suggested that
required controls should be limited to a
facility's proportional contribution
(based on concentration) of pollutants.
EPA disagrees. Most facilities
discharging through a municipal
separate storm sewer will need to be
covered by a general or individual
permit. These permits will control the
introduction of pollutants from that
facility through the municipal storm
sewer to the waters of the U.S. Any
additional controls placed on the facility
by the municipality will be at the
discretion of the municipality. EPA is
not requiring municipalities to adopt a
particular level of controls on industrial
facilities as suggested by the
commenter.
One coramenter questioned how
dischargers that discharged both into
tha waters of the United States and
through a municipal system will be
addressed and whether there is a
potential for inconsistent requirements.
Industries that discharge storm water
associated with industrial activity into
the waters of the United States are
required to be covered by individual
permits or general permits for such
discharges. Dischargers of storm water
associated with industrial activity
through municipal separate storm sewer
systems will be subject to municipal
management programs that address
such discharges as well as to an
individual or general NPDES permit for
those discharges. EPA does not believe
there is a significant risk of inconsistent
requirements, since each industrial
facility must meet BAT/BCT-level
controls in its NPDES permit. EPA
doubts that municipalities will impose
much more stringent controls.
Many commenters stated that if cities
and municipalities are to be responsible
for industrial storm water discharges
through their system, then municipalities
should have authority to make
determinations as to what industries
should be regulated, how they are
regulated, and when enforcement
actions are undertaken. In response,
EPA notes that the proposal has been
changed and that municipalities will not
be solely responsible for industries
discharging through their system.
Nonetheless, municipalities will be
required to meet the terms of their
permits related to industrial dischargers.
Municipalities may undertake programs
that go beyond the threshold
requirements of the permit. Some
municipal entities stated that municipal
permittees should be able to require
permit applications from industries in
the same manner that EPA does and
also require permits. In response, if
operators of large and medium
municipal separate storm sewer systems
wish to employ such a program, then
this portion of the management program
may incorporate such practices.
cL Measures to reduce pollutants in
runoff from construction sites into
municipal systems. Section VI.F.8 of
today's rule discusses EPA's proposal to
define the term "storm water discharge
associated with industrial activity" to
include runoff from construction sites,
including preconstruction activities
except operations that result in the
disturbance of less than 5 acres total
land area which are not part of a larger
common plan of development or sale.
Under today's rule, facilities that
discharge runoff from construction sites
that meet this definition will be required
to submit permit applications unless
they are to be covered by another
individual or general NPDES permit
Permit application requirements for such
discharges are at 40 CFR 122.26(c)(l)(ii).
Section 122.26{d)(2)(iv)(D) of today's
rule requires applicants for a permit for
large or medium municipal separate
storm sewer systems to submit a
description of a proposed management
program to control pollutants in
construction site runoff that discharges
to municipal systems. Under this
provision, municipal applicants will
submit a description of a program for
implementing and maintaining structural
and non-structural best management
practices for controlling storm water
runoff at construction sites. The program
will address procedures for site
planning, enforceable requirements for
nonstructural and structural best
management practices, procedures for
inspecting sites and enforcing control
measures, and educational and training
measures. Generally, construction site
ordinances are effective when they are
implemented. However, in many areas,
even though Ordinances exist, they have
limited effectiveness because they are
not adequately implemented.
Maintaining best management practices
also presents problems. Retention and
infiltration basins fill up and silt fences
may break or be overtopped. Weak
inspection and enforcement point to the
need for more emphasis on training and
education to complement regulatory
programs. Permits issued to
municipalities will address these
concerns.
8. Assessment of Controls
EPA proposed that municipal
applicants provide an initial assessment
of the effectiveness of the control
method for structural or non-structural
controls which have been proposed in
the management program. Some
commenters stated that the assessment
of controls should be left to the term of
the permit because the effectiveness of
controls will be hard to establish. EPA
believes that an initial estimate or
assessment is needed because the
performance of appropriate management
controls is highly dependent on site-
specific factors. The assessment will be
used in conjunction with the
development of pollutant loading and
concentration estimates (see VI.H.e.c)
and the evaluation of water quality
benefits associated with implementing
controls. Such assessments do not have
to be verified with quantitative data, but
can be based on accepted engineering
design practices. Further more precise
assessments based upon quantitative
data can be undertaken, during the term
of the permit.
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Federal Register / Vol. 55, No. 222 /Friday, November 16, 1990'/ Rules and Regulations 48059
/. Annual Reports
As discussed earlier in today's
preamble. EPA has provided for
proposed flexible permit application
requirements to facilitate the
development of site-specific programs to
control the discharge of pollutants from
large and medium municipal separate
storm sewer systems. Many
municipalities are in the early stages of
the complex task of developing a
program suitable for controlling
pollutants in discharges under a NPDES
permit, while other municipalities have
relatively sophisticated programs in
place. In order to ensure that such site-
specific programs are developed in a
timely manner, EPA proposed to require
permittees of municipal separate storm
sewer systems to submit status reports
every year which reflect the
development of their control programs.
The reports will be used by the
permitting authority to aid in evaluating
compliance with permit conditions and
where jiecessary, modify permit
conditions to address changed
conditions. EPA requested comments on
the appropriate content of the annual
reports. Based on these comments EPA
has added the following in these reports:
an analysis of data, including monitoring
data, that is accumulated throughout the
year; new outfalls or discharges; annual
expenditures; identification of water
quality improvements or degradation on
watershed basis; budget for year
following each annual report; and
administrative information including
enforcement activities, inspections, and
public education programs. EPA views
this information as important for
evaluating the municipal program.
Annual monitoring data and identified
water quality improvements are
important for evaluating the success of
management programs in reducing
pollutants. If new outfalls come into
existence during the term of the permit,
these may be sources of pollutants and
appropriate permit conditions will be
developed. Annual reports should reflect
the level of enforcement activity and
inspections undertaken, to ensure that,
the legal authority developed by the
municipality is properly exercised.
Many of the management programs
depend upon an ongoing high level of
public education. Accordingly, the
undertaking of these programs on an
annual basis should be documented.
/. Application Deadlines
The CWA provided a statutory time
frame for implementing the storm water
permit application process and issuance
and compliance with permits.
The CWA requires EPA to promulgate
permit application requirements for
storm water discharges associated with
industrial activity and for large
municipal separate storm sewer systems
by "no later than two years" after the
date of enactment (i.e. no later than
February 4,1989). In conjunction with
this requirement, 4he Act requires that
permit applications for these classes of
discharges be submitted within one year
after the statutory date by which EPA is
to promulgate permit application
requirements by providing that such
applications "shall be filed no later than
three years" after the date of enactment
of the WQA (i.e., no later than February
4,1990).
The CWA also requires EPA to
promulgate final regulations governing
storm water permit application
requirements for discharges from
municipal separate storm sewer systems
serving a population of 100,000 or more
but less than 250,000 by "no later than
four years" after enactment (i.e. no later
than February 4,1991). Permit
applications for medium municipal
separate storm sewer systems "shall be
filed no later than five years" after the
date of enactment of the CWA (i.e., no
later than February 4,1992). The CWA
did not establish the time period
between designation and permit
application submittal for case-by-case
designations under section 402(p)(2)(E).
Comments on earlier rulemakings
involving storm water application
deadlines have established that
applicants need adequate time to obtain
"representative" storm water samples.
Many commenters have indicated that
at least one full year is needed.to obtain
such samples. This is because many
discharges are located in areas where
testing during dry seasons or winter
would not be feasible. The intermittent
and unpredictable nature of storm water
discharges can result in difficult and
time-consuming data gathering.
Moreover, some operators of municipal
separate storm sewer systems have
many storm water discharges associated
with industrial activity, which can
require considerable time to identify,
analyze, and submit applications. This
creates a tremendous practical problem
for the extremely high number of
unpermitted storm water discharges.
The public's interest in a sound storm
water program and the development of a
useful storm water data base is best
served by establishing an application
deadline which will allow sufficient time
to gather, analyze, and prepare •
meaningful applications. Based on a
consideration of these factors, EPA
proposed that individual permit
applications for storm water discharges
associated with industrial activity
which currently are not covered b> a
permit and that are required to obtuin a
permit, be submitted one year after the
final rule is promulgated.
EPA received numerous comments
from industries on the one year
requirement for submitting applications.
Several commenters supported the
proposed deadline as realistic,- while
others believed more time was needed
to meet the information and quantitative
requirement.
EPA rejects the assertion by some
commenters that a year is too short a
period of time to obtain the required
quantitative data. Today's rule-generally
requires applications for storm water
discharges associated with industrial
activity to be submitted on or before
November 18,1991. Operators of storm
water discharges associated with
industrial activity which discharge
through a municipal separate storm
sewer are subject to the same
application deadline as other storm
water discharges associated with
industrial activity. Since final regulation
at § 122.21(g)(7) provides considerable
latitude for selecting rain events for
quantitative data, EPA is convinced that
in most cases data can be obtained
during the one year time frame. If data
cannot be collected during the one year
time frame because of anomalous
weather (e.g. drought conditions), then
permitting authorities may grant
additional time for submitting that data
on a case-by-case basis. See
§ 122.21(g)(7).
Operators of storm water discharges
which are currently covered by a permit
will not be required to submit a permit
application until their existing permit
expires. In recognition of the time
required to collect storm water
discharge data, EPA will allow facilities
which currently have a NPDES permit
for a storm water discharge and which
must reapply for permit renewal during
the first year following promulgation of
today's permit application requirements
the option of applying in accordance
with existing Form 1 and Form 2C
requirements (in lieu of applying in
accordance with the revised application
requirements).
As discussed in section VI.O.4 and
section VI.F.6 of today's preamble, EPA
has established a two part permit
application both for both group
applications for sufficiently similar
facilities that discharge storm water
associated with industrial activity and
for operators of large or medium
municipal separate storm sewer
systems. The deadlines for submitting
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48060 Federal Register / Vol. 55. No. 222 / Friday, November 16. 1990 / Rules and Regulations
permit applications in today's rule
provide adequate time fon'(l)
Applicants to prepare Part 1 of the
application; (2) EPA or an approved
State to adequately review applications;
and (3) applicants Co prepare the
contents of the part 2 application.
Part 1 of the group application for
storm water discharges associated with
industrial activity must be submitted
within 120 days from the publication of
these final permit application
regulations. This time is necessary to
form groups and for individual members
of the group to prepare the non-
quantitative information required in part
1 of the application. Part 1 of the group
application will be submitted to EPA
Headquarters in Washington, DC and
reviewed within 60 days after being
received. Port 2 of the application would
then be submitted within one year after
the part 1 application is approved. It
should be noted that many facilities
located in States In which general
permits can be issued, will be eligible
for coverage by a storm water general
permit to. be promulgated in the near
future. Such facilities may either seek
coverage under such general permits or
participate in the group application.
Several comments were received by
EPA that indicated that a period of 120
days was too short a period for groups
to be formed. EPA disagrees with these
comments. The information that EPA is
requiring to be submitted by the group
or group representative is information
that is generally available such as the
location of the facility, its industrial
activity, and material management
practices. EPA believes that 120 days is
sufficient to gather and submit this
information along with an identification
of 10% of the facilities which will submit
quantitative data. To ameliorate any
difficulties for applicants, EPA has
provided a means for late facilities to
"add on" where appropriate, on a case-
by-case basis, as discussed in section
VI.F.4, above.
'Several comments were received with
regard to the requirement that new
dischargers submit an application at
least 180 days before the date on which
the discharge is to commence. One
oommenter noted that it will be difficult
for a facility to know when a storm
water
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Federal Register / Vol. 55. No.
and Regulations 480S1
continue to be enforceable •
requirements.
EPA was not able to promulgate the
final application regulations for storm
water discharges before the February 4,
1990, deadline for industrial and large
municipal dischargers despite its best
efforts. Further, as noted above, EPA is
not able to waive the statutory deadline.
Dischargers concerned with complying
with the statutory deadline should
submit a permit application as required
under this rulemaking as expeditiously
as possible.
Operators of storm water discharges
that are not specifically required to file a
permit application under today's rule
may be required to obtain a permit for
their discharge on the basis of a case-
by-case designation by the
Administrator or the NPDES State.
The Administrator or NPDES State
may also designate storm water
discharges (except agricultural storm
water discharges), that contribute to a
violation of a water quality standard or
»hat are significant contributors of
pollutants to waters of the United States
for a permit. Prior to a case-by-case
determination that an individual permit
is required for a storm water discharge,
the Administrator or NPDES State may
require the operator of the discharge to
submit a permit application. 40 GFR
124.52(c) requires the operator of
designated storm water discharges to
submit a permit application within 60
days of notice, unless permission for a
later date is granted. The 60-day
deadline is consistent with the
procedures for designating other
discharges for a NPDES permit on a
case-by-case basis found at 40 CFR
124.52. The 60-day deadline recognizes
that case-by-case designations often
require an expedited response, however,
flexibility exists to allow for case-by-
case extensions.
The December 7,1988, proposal also
proposed Part 504 State Storm Water
Management Programs. The Agency has
not included this component in today's
rule. The Agency believes this program
element is appropriate for addressing in
regulations promulgated under section
402(p)(6)oftheCWA.
VII. Economic Impact
EPA has prepared an Information
Collection Request for the purpose of
estimating the information collection
burden imposed on Federal, State and
local governments and industry for
revisions to NPDES permit application
requirements for storm water discharges
codified in 40 CFR part 122. EPA is
promulgating these revisions in response
to Section 402{p}(4] of the Clean Water
Act, as amended b> the Water Quality
Act of 1987 (WQA). The revisions would
apply to:-Storm water discharges
associated with industrial activity:
discharges from municipal separate
storm sewer systems serving a
population of 250,000 or more and
discharges from municipal separate
storm sewer systems serving a
population of 100,000 or more, but less
than 250,000.
The estimated annual cost of applying
for NPDES permits for discharges from
municipal separate storm sewer systems
is $4.2 million. EPA estimates that an
average permit application for a large
municipality will cost $76,681 and
require 4,534 hours to prepare. The
average application for a medium
municipality will cost $49,249 (2,912
hours) to prepare. The annual
respondent cost for NPDES permit
applications, notices of intent, and
notifications for facilities with
discharges associated with industrial
activity is estimated to be $9.5 million
(•271,248 hours). EPA estimates that the
average preparation cost of an
individual industrial permit application
would be $1,007 (28.6 hours). Average
Group application will cost $74.00 per
facility (2.1 hours). The average cost of
the notification and notice of intent to
be covered by general permit is $17.00
(0.5 hours).
The annual cost to the Federal
Government and approved States for.
administration of the program is
estimated to be $588,603. The total cost
for municipalities, industry, and State
and Federal authorities is estimated to
be $14.5 million annually.
In general, the cost estimates provided
in the ICR focus primarily on the costs
associated with developing, submitting
and reviewing the permit applications
associated with today's rule. EPA will
continue to evaluate procedures and
methods to control storm water
discharges to the extent necessary to
mitigate impacts on water quality in the
studies required under section 402(p)(5)
of the CWA. Executive Order 12291
requires EPA and other agencies to
perform regulatory analyses of major
regulations. Major rules are those which
impose a cost on the economy of $100
million or more annually or have certain
other economic impacts. Today's
proposed amendments would generally
make the NPDES permit application
regulations more flexible and less
burdensome for the regulated
community. These regulations'do not,
satisfy any of the criteria specified in
section l(b) of the Executive Order and,
as such, do not constitute a major rule.
This regulation was submitted to the
Office of Management and Budget
(OMB), for review.
VIII. Paperwork Reduction Act
The. information collection
requirements in this rule have been
submitted for approval to the Office of
Management and Budget (OMB) under
provision of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. and have
been assigned OMB control number
2040-0086.
Public reporting burden for permit
applications for storm water discharges
associated with industrial activity (other
than from construction facilities) is
estimated to average 28.6 hours per
individual permit application, 0.5 hours
per notice of intent to be covered by
general permit, and 2.1 hours per group
applicant. The public reporting burden
for permit applications for storm water
discharges associated with industrial
activity from construction activities
submitting individual applications is
estimated to average 4.5 hours per
response. The public reporting burden
for facilities which discharge storm
water associated with industrial activity
to municipal separate storm sewers
serving a population over 100,000 to
notify the operator of the municipal
separate storm sewer system is
estimated to average 0.5 hours per
response.
The reporting burden for system-wide
permit applications for discharges from
municipal separate storm sewer systems
serving a population of 250,000 or more
is estimated to average 4,534 hours per
response. The reporting burden for
system-wide permit applications for
discharges from municipal separate
storm sewer systems serving a
population of 100,000 or more, but less
than 250,000 is estimated to average
2,912 hours per response. Estimates of
reporting burden include time for
reviewing instructions, searching
existing data sources, gathering and
maintaining the data needed, and
completing and reviewing the collection
of information.
IX. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5
U.S.C. 601 et seq., EPA is required to
prepare a Regulatory. Flexibility
Analysis to assess the impact of rules on
small entities. No Regulatory Flexibility
Analysis is required, however, where
the head of the agency certifies that the
rule will not have a significant economic
impact on a substantial number of small
entities.
Today's amendments to the
regulations would generally make the
NPDES permit applications regulations
more flexible and less burdensome for
permittees. Accordingly, I hereby
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40062
Federal Register / Vol. 55. No. 222 / Friday. November 16. 1990 / Rules and Regulations
certify, pursuant to 5 U.S.C. 605(b), that
these amendments do not. have a
significant impact on a substantial
number of small entities.
List of Subjects in 40 CFR Parts 122,123,
and 124
Administrative practice and
procedure, Environmental protection,
Reporting and recordkeeping
requirements, Water pollution control.
Authority: Clean Water Act, 33 U.S.C. 1251
Ctscq.
Dated: October 31.1990.
\Villkm K. Rellly,
Administrator.
For the reasons stated in the
preamble, parts 122,123, and 124 of title
40 of the Code of Federal Regulations
are amended as follows:
PART 122—EPA ADMINISTERED
PERMIT PROGRAMS; THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
Subpart B—Permit Application and
Special NPDES Program Requirements
1. The authority citation for part 122
continues to read as follows:
Authority: Clean Water Act, 33 U.S.C. 1251
etscq.
2. Section 122.1 is amended by
revising paragraph (b)(2)[iv) to read as
follows:
§ 122.1 Purpose and scope.
*****
(b) * « *
(2) • * *
(iv) Discharges of storm water as set
forth in § 122.26; and
*****
3. Section 122.21 is amended by
revising paragraph fc)(l), by removing
the last sentence of paragraph (fK7), by
removing paragraph (f)(9). by adding
two sentences at the end of paragraph
(gK3)« by revising paragraph (g)(7)
introductory text, by removing and
reserving paragraph (g)(10) and by
revising the Introductory text of
paragraph (k) to read as follows:
§ 122.21 Application for a permit
(applicable to State programs, see
§ 123.25).
*****
(c) Time to apply. (1) Any person
proposing a new discharge, shall submit
an application at least 180 days before
the date on which the discharge is to
commence, unless permission for a later
date has been granted by the Director.
Facilities proposing a new discharge of
storm water associated with industrial
activity shall submit an application 180
days before that facility commences
industrial activity which may result in a
discharge of storm water associated
with that industrial activity. Facilities
described under § 122.26(b)(14)(x> shall
submit applications at least SO days
before the date on which construction is
to commence. Different submittal dates
may be required under the terms of
applicable general permits. Persons
proposing a new discharge are
encouraged to submit their applications
well in advance of the 90 or 180 day
requirements to avoid delay. See also
paragraph (k) of this section and
§ 122.26 (c)(l)(i)(G) and (c)(l)(ii).
*****
fe)**.*
(3) * * * The average flow of point
sources composed of storm water may
be estimated. The basis for the rainfall
event and the method of estimation must
be indicated.
*****
(7) Effluent characteristics.
Information on the discharge of
pollutants specified in this paragraph
(except information on storm water
discharges which is to be provided as
specified in § 122.26). When
"quantitative data" for a pollutant are
required, the applicant must collect a
sample of effluent and analyze it for the
pollutant in accordance with analytical
methods approved under 40 CFR part
136. When no analytical method is
approved the applicant may use any
suitable method but must provide a
description of the method.'When an
applicant has two or more outfalls with
substantially identical effluents, the
Director may allow the applicant to test
only one outfall and report that the
quantitative data also apply to the
substantially identical outfalls. The
requirements in paragraphs (g)(7) (iii)
and (iv) of this section that an applicant
must provide quantitative data for
certain pollutants known or believed to
be present do not apply to pollutants .
present in a discharge solely as the
result of their presence in intake water;
however, an applicant must report such
pollutants as present. Grab samples
must be used for pH, temperature,
cyanide, total phenols, residual chlorine,
oil and grease, fecal coliform and fecal
streptococcus. For all other pollutants,
24-hour composite samples must be
used. However, a minimum of one grab
•sample may be taken for effluents from
holding ponds or other impoundments
with a retention period greater than 24
hours. In addition, for discharges other
than storm water discharges, .the
Director may waive composite-sampling
for any outfall'for which the applicant
demonstrates that the Use of an
automatic sampler is infeasible and that
the minimum of four (4) grab samples
will be a representative sample of the
effluent being discharged. For storm
water discharges, all samples shall be
collected from the discharge resulting
from a storm event that is greater than
0.1 inch and at least 72 hours from the
previously measurable (greater than 0.1
inch rainfall) storm event. Where
feasible, the variance in the duration of
the event and the total rainfall of the
event should not exceed 50 percent from
the average or median rainfall event in
that area^ For all applicants, a flow-
weighted composite shall be taken for
either the entire discharge or for the first
three hours of the discharge. The flow-
weighted composite sample for a storm
water discharge may be taken with a
continuous sampler or as a combination
of a minimum ofthree sample aliquots
taken4n each hour of discharge for the
entire discharge or for the first three
hours of the discharge, with each aliquot
being separated by a minimum period of
fifteen minutes (applicants submitting
permit applications for storm water
discharges under § 122.26(d) may collect
flow weighted composite samples using
different protocols with 'respect to the
time duration between the collection of
sample aliquots, subject to the approval
of the Director). However, a minimum of
one grab sample may be taken for storm
water discharges from holding ponds or
other impoundments with a retention
period greater than 24 hours. For a flow-
weighted composite sample, only one
analysis of the composite of aliquots is
required. For storm water discharge
samples taken from discharges
associated with industrial activities,
quantitative data must be reported for
the grab sample taken during the first
thirty minutes (or as soon thereafter as
practicable) of the discharge for all
pollutants specified in § 122.26(c)(l). For
' all storm water permit applicants taking
flow-weighted composites, quantitative
data must be reported for all pollutants
specified in § 122.26 except pH,
temperature, cyanide, total phenols,
residual chlorine, oil and grease, fecal
colifonn, and fecal streptococcus, The
Director may allow or establish
appropriate site-specific sampling
procedures or requirements, including
sampling locations, the season in which
the sampling takes place, the minimum
duration between the previous
measurable storm event and the storm
event sampled, the minimum or
maximum level of precipitation required
for an appropriate storm event, the form
of precipitation sampled (snow melt or
rain fall), protocols fo" collecting
samples under 40 CFR part 136, and
additional time for submitting data on a
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Federal Register / Vol. 55. No. 222 / Friday. November lift. 1990 / Rules and Regulations 48063
. case-by-case basis. An applicant is
expected to "know or have reason to
believe" that a pollutant is present ia an
effluent based on an evaluation of the
expected use, production, or storage of
the pollutant, or on any previous
analyses for the pollutant. (For example.
any pesticide manufactured by a facility
may be expected to be present in
contaminated storm water runoff from
the facility.)
* * « » *
(k) Application requirements for new
sources and new discharges. New
manufacturing, commercial, mining and
silvicultural dischargers applying for
NPDES permits (except for new
discharges of facilities subject to the
requirements of paragraph (h) of this
section or new discharges of storm
water associated with industrial activity
which are subject to the requirements of
§ 122.26(c)(l) and this section (except as
provided by § 122.26(c)(l)(ii)) shall
provide the following information to the
Director, using the application forms
provided by the Director:
*****
4. Section 122.22(b) introductory text
is revised to read as follows:
§ 122.22 Signatories to permit applications
and reports (applicable to State programs,
see § 123.25).
*****
(b) All reports required by permits,
and other information requested by the
Director shall be signed by a person
described in paragraph (a) of this
section, or by a duly authorized
representative of that person. A person
is a duly authorized representative only
if:
*****
5. Section 122.26 is revised to read as
follows:
§ 122.26 Storm water discharges
(applicable to State NPDES programs, see
§ 123.25).
(a) Permit requirement. (1) Prior to
October 1,1992, discharges composed
entirely of storm water shall not be
required to obtain a NPDES permit
except:
(i) A discharge with respect to which
a permit has been issued prior to
February 4,1987;
(ii) A discharge associated with
industrial activity (see.§,122.26(a)(4));
(iii) A discharge from a large
municipal separate storm sewer system;
(iv) A discharge from a medium
municipal separate storm sewer system;
(v) A discharge which the Director, or
in States with approved NPDES
programs, either the Director or the EPA
Regional Administrator, determines to
contribute to a violation of a water
quality standard or is a significant
contributor of pollutants to waters of the
United States. This designation may
include a discharge from any
conveyance or system of conveyances
used for collecting and conveying storm
water runoff or a system of discharges
from municipal separate storm sewers,
except for those discharges from
conveyances which do not require a
permit under paragraph (a)(2) of this
section or agricultural storm water
runoff which is exempted from the
definition of point source at § 122.2.
The Director may designate discharges
from municipal separate storm sewers
on a system-wide or jurisdiction-wide
basis. In making this determination the
Director may consider the following
factors:
(A) The location of the discharge with
respect to waters of the United States as
defined at 40 CFR 122.2.
(B) The size of the discharge;
(C) The quantity and nature of the
pollutants discharged to waters of the
United States; and
(D) Other relevant factors.
{2] The Director may not require a
permit for discharges of storm water
runoff from mining operations or oil and
gas exploration, production, processing
or treatment operations or transmission
facilities, composed entirely of flows
which are from conveyances or systems
of conveyances (including but not
limited to pipes, conduits, ditches, and
channels) used for collecting and
conveying precipitation runoff and
which are not contaminated by contact
with or that has not come into contact
with, any overburden, raw material,
intermediate products, finished product,
byproduct or waste products located on
the site of such operations.
(3) Large and medium municipal
separate storm sewer systems, (i)
Permits must be obtained for all
discharges from large and medium
municipal separate storm sewer
systems.
(ii) The Director may either issue one
system-wide permit covering all
discharges from municipal separate
storm sewers within a large or medium
municipal storm sewer system or issue
distinct permits for appropriate
categories of discharges within a large
or medium municipal separate storm
sewer system including, but not limited
to: all discharges owned or operated by
the same municipality; located within
the same jurisdiction; all discharges
within a system that discharge to the
same watershed; discharges within a
system that are similar in nature; or for
individual discharges from municipal
separate storm sewers within the
system.
(iii) The operator of a discharge from
a municipal separate storm sewer which
is part of a large or medium municipal
separate storm sewer system must
either:
(A) Participate in a permit application
(to be a permittee or a co-permittee)
with one or more other operators of
discharges from the large or medium
municipal storm sewer system which
covers all, or a portion of all, discharges
from the municipal separate storm
sewer system;
(B) Submit a distinct permit
application which only covers
discharges from the municipal separate
storm sewers for which the operator is
responsible; or
(C) A regional authority may be
responsible for submitting a permit
application under the following
guidelines:
(1) The regional authority together
with co-applicants shall have authority
over a storm water management
program that is in existence, or shall be
in existence at the time part 1 of the
application is due;
(2) The permit applicant or co-
applicants shall establish their ability to
make a timely submission of part 1 and
part 2 of the municipal application;
(3) Each of the operators of municipal
separate storm sewers within the
systems described in paragraphs (b)(4)
(i), (ii), and (iii) or (b)(7) (i), (ii), and (iii)
of this section, that are under the
purview of the designated regional
authority, shall comply with the
application requirements of paragraph
(d) of this section.
(iv) One permit application may be
submitted for all or a portion of all
municipal separate storm sewers within
adjacent or interconnected large or
medium municipal separate storm sewer
systems. The Director may issue one
system-wide permit covering all, or a
portion of all municipal separate storm
sewers in adjacent or interconnected
large or medium municipal separate
storm sewer systems.
(v) Permits for all or a portion of all
discharges from large or medium
municipal separate st.orm sewer systems
that are issued on a system-wide,
jurisdiction-wide, watershed or other
basis may specify different conditions
relating to different discharges covered
by the permit, including different
management programs for different
drainage areas which contribute storm
water to the system.
(vi) Co-permittees need only comply
with permit conditions relating to
discharges from the municipal separate
storm sewers for which they are
operators.
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48064 Federal Register / Vol. 55. No. 222 / Friday. November 16. 1990 / Rules and Regulations
14) Discharges through large and
medium municipal separate storm sewer
systems: In addition to meeting the
requirements of paragraph (c) of this
section, an operator of a storm water
discharge associated with industrial
activity which discharges through a
large or medium municipal separate
storm sewer system shall submit, to the
operator of the municipal separate storm
sewer system receiving the discharge no
later than May 15,1991, or 180 days
prior to commencing such discharge: the
name of the facility; a contact person
and phone number; the location of the
discharge; a description, including
Standard Industrial Classification,
\vhlch best reflects the principal
products or services provided by each
facility; and any existing NPDES permit
number.
(5) Other municipal separate storm
sowers. The Director may issue permits
for municipal separate storm sewers
that are designated under paragraph
(a)(l)(v) of this section on a system-wide
basis, jurisdiction-wide basis,
watershed basis or other appropriate
basis, or may issue permits for
individual discharges.
(B) Non-municipal separate storm
sewers. For storm water discharges
associated with industrial activity from
point sources which discharge through a
non-municipal or non-publicly owned
separate storm sewer system, the
Director, in his discretion, may issue: a
single NPDES permit, with each
discharger a co-permittee to a permit
issued to the operator of the portion of
the system that discharges into waters
of the United States; or, individual
permits to each discharger of storm
water associated with industrial activity
through the non-municipal conveyance
system.
(i) All storm water discharges
associated with industrial activity that
discharge through a storm water
discharge system th-at is not a municipal
separate storm sewer must be covered
by an individual permit, or a permit
issued to the operator of the portion of
the system that discharges to waters of
the United States, with each discharger
to the non-municipal conveyance a co-
permittee to that permit
(ii) Where there is more than one
operator of a single system of such
conveyances, all operators of storm
water discharges associated with
industrial activity must submit
applications.
(Hi) Any permit covering more than
one operator shall identify the effluent
limitations, or other permit conditions, if
any, that apply to each operator.
(7) Combined sewer systems.
Conveyances that discharge storm
water runoff combined with municipal
sewage are point sources that must
obtain NPDES permits in accordance
with the procedures of § 122.21 and are
not subject to the provisions of this
section.
(8) Whether a discharge from a
municipal separate storm sewer is or is
not subject to regulation under this
section shall have no bearing on
whether the owner or operator of the
discharge is eligible for funding under
title II, title III or title VI of the Clean
Water Act. See .40 CFR part 35, subpart
I, appendix A(b)H.2.j.
(b) Definitions. (1) Co-permittee
means a permittee to a NPDES permit
that is only responsible for permit
conditions relating to the discharge for
which it is operator.
(2) Illicit discharge means any
discharge to a municipal separate storm
sewer that is not composed entirely of
storm water except discharges pursuant
to a NPDES permit (other than the
NPDES permit for discharges from the
municipal separate storm sewer) and
discharges resulting from fire fighting
activities.
(3) Incorporated place means the
District of Columbia, or a city, town,
township, or village that is incorporated
under the laws of the State in which it is
located.
(4) Large municipal separate storm
sewer system means all municipal
separate storm sewers that are either:
(i) Located in an incorporated place
with a population of 250,000 or more as
determined by the latest Decennial
Census by the Bureau of Census
(appendix F); or
(ii) Located in the counties listed in
appendix H, except municipal separate
storm sewers that are located in the
incorporated places, township's or towns
within such counties; or
(iii) Owned or operated by a
municipality other than those described
in paragraph (b)(4) (i) or (ii) of this
section and that are designated by the
Director as part of the large or medium
municipal separate storm sewer system
due to the interrelationship between the
discharges of the designated storm
sewer and the discharges from
municipal separate storm sewers
described under paragraph (b)(4) (i) or
(ii) of this section. In making this
determination the Director may consider
the following factors:
(A) Physical interconnections
between the municipal separate storm
sewers;
(B) The location of discharges from
the designated municipal separate storm
sewer relative to discharges from
municipal separate storm sewers
described in paragraph (b)(4)(i) of this
section;
(C) The quantity and nature of
pollutants discharged to waters of the
United States;
(D) The nature of the receiving waters;
and
(E) Other relevant factors; or
(iv) The Director may, upon petition,
designate as a large municipal separate
storm sewer system, municipal separate
storm sewers located within the
boundaries of a region defined by a
storm water management regional
authority based on a jurisdictional,
watershed, or other appropriate basis
that includes one or more of the systems
described in paragraph (b)(4) (i), (ii), (iii)
of this section.
(5) Major municipal separate storm
sewer outfall (or "major outfall") means
a municipal separate storm sewer outfall
that discharges from a single pipe with
an inside diameter of 36 inches or more
or its equivalent (discharge from a single
conveyance other than circular pipe
which is associated with a drainage
area of more than 50 acres); or for
municipal separate storm sewers that
receive storm water from lands zoned
for industrial activity (based on
comprehensive zoning plans or the
equivalent), an outfall that discharges
from a single pipe with an inside
diameter of 12 inches or more or from its
equivalent (discharge from other than a
circular pipe associated with a drainage
area of 2 acres or more).
(6) Major outfall means a major
municipal separate storm sewer outfall.
(7) Medium municipal separate storm
sewer system means all municipal
separate storm sewers that are either:
(i) Located in an incorporated place
with a population of 100,000 or more but
less than 250,000, as determined by the
latest Decennial Census by the Bureau
of Census (appendix G); or
(ii) Located in the counties listed in
appendix I, except municipal separate
storm sewers that are located in the
incorporated places, townships or towns
within such counties; or
(iii) Owned or operated by a
municipality other than those described
in paragraph (b)(4) (i) or (ii) of this
section and that are designated by the
Director as part of the large or medium
municipal separate storm sewer system
due to the interrelationship between the
discharges of the designated storm
sewer and the discharges from
municipal separate storm 'sewers
described under paragraph (b)(4) (i) or
(ii) of this section. In making this
determination the Director may consider
. the following factors:
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Federal Register / Vol. 55. No. 222 / Friday. November 16. 1990 /Rules and Regulations
48065
(A) Physical interconnections
between the municipal separate storm
sewers;
(B) The location of discharges from
the designated municipal separate storm
sewer relative to discharges from
municipal separate storm sewers
described in paragraph (b)(7)(i) of this
section;
(C) The quantity and nature of
pollutants discharged to waters of the
United States;
(D) The nature of the receiving waters;
or
(E) Other relevant factors; or
(iv) The Director may, upon petition,
designate as a medium municipal
separate storm sewer system, municipal
separate storm sewers located within
the boundaries of a region defined by a
storm.water management regional
authority based on a jurisdictional,
watershed, or other appropriate basis
that includes one or more of the systems
described in paragraphs (b)(7) (i), (ii),
(iii) of this section.
(8) Municipal separate storm sewer
means a conveyance or system of
conveyances (including roads with
drainage systems, municipal streets,
catch basins, curbs, gutters, ditches,
man-made channels, or storm drains):
(i) Owned or operated by 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, storm water,
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;
(ii) Designed or used for collecting or
conveying storm water;
(iii) Which is not a combined sewer;
and
(iv) Which is not part of a Publicly
Owned Treatment Works (POTW) as
defined at 40 CFR 122.2.
(9) Outfall means a point source as
defined by 40 CFR 122.2 at the point
where a municipal separate storm sewer
discharges to waters of the United
States and does not include open
conveyances connecting two municipal
separate storm sewers, or pipes, tunnels
or other conveyances which connect
segments of the same stream or other
vaters of the United States and are used
o convey waters of the United States.
(10) Overburden means any material
of any nature, consolidated or
mconsolidated, that overlies a mineral
ri°"osit, excluding topsoil or similar
naturally-occurring surface materials
that are not disturbed by mining
operations.
(11) Runoff coefficient means the
fraction of total rainfall that will appear
at a conveyance as runoff.
(12) Significant materials includes,
but is not limited to: raw materials;
fuels; materials such as solvents,
detergents, and plastic pellets; finished
materials such as metallic products; raw
materials used in food processing or
production; hazardous substances
designated under section 101(14) of
CERCLA; any chemical the facility is
required to report pursuant to section
313 of title III of SARA; fertilizers;
pesticides; and waste products such as
ashes, slag and sludge that have the
potential to be released with storm
water discharges.
(13) Storm water means storm water
runoff, snow melt runoff, and surface
runoff and drainage.
(14) Storm water discharge associated
with industrial activity means the
discharge from any conveyance which is
used for collecting and conveying storm
water and which is directly related to
manufacturing, processing or raw
materials storage areas at an industrial
plant. The term does not include
discharges from facilities or activities
excluded from the NPDES program
under 40 CFR part 122. For the
categories of industries identified in
paragraphs (b)(14) (i) through (x) of this
section, the term includes, but is not
limited to, storm water discharges from
industrial plant yards; immediate access
roads and rail lines used or traveled by
carriers of raw materials, manufactured
products, waste material, or by-products
used or created by the facility; material
handling sites; refuse sites; sites used for
the application or disposal of process
waste waters (as defined at 40 CFR part
401); sites used for the storage and
maintenance of material handling
equipment; sites used for residual
treatment, storage, or disposal; shipping
and receiving areas; manufacturing
buildings; storage areas (including tank
farms) for raw materials, and
intermediate and finished products; and
areas where industrial activity has
taken place in the past and significant
materials remain and are exposed to
storm water. For the categories of
industries identified in paragraph
(b)(14)(xi) of this section, the term
includes only storm water discharges
from all the areas (except access roads
and rail lines) that are listed in the
previous sentence where material
handling equipment or activities, raw
materials, intermediate products, final
products, waste materials, by-products,
or industrial machinery are exposed to
storm water. For the purposes of this
paragraph, material handling activities
include the storage, loading and
unloading, transportation, or
conveyance of any raw material,
intermediate product, finished product,
by-product or waste product. The term
excludes areas located on plant lands
separate from the'plant's industrial
activities, such as office buildings and
accompanying parking lots as long as
the drainage from the excluded areas is
not mixed with storm water drained
from the above described areas.
Industrial facilities (including industrial
facilities that are Federally, State, or
municipally owned or operated that
meet the description of the facilities
listed in this paragraph (b)(14)(i)-(xi) of
this section) include those facilities
designated under the provisions of
paragraph (a)(l)(v) of this section. The
following categories of facilities are
considered to be engaging in "industrial
activity" for purposes of this subsection:
(i) Facilities subject to storm water
effluent limitations guidelines, new
source performance standards, or toxic
pollutant effluent standards under 40
CFR subchapter N (except facilities with
toxic pollutant effluent standards which
are exempted under category (xi) in
paragraph (b)(14) of this section);
(ii) Facilities classified as Standard
Industrial Classifications 24 (except
2434), 26 (except 265 and 267), 28 (except
283), 29, 311, 32 (except 323), 33, 3441, 373;
(iii) Facilities classified as Standard
Industrial Classifications 10 through 14
(mineral industry) including active or
inactive mining operations (except for
areas of coal mining operations no
longer meeting the definition of a
reclamation area under 40 CFR 434.11(1)
because the performance bond issued to
the facility by the appropriate SMCRA
authority has been released, or except
for areas of non-coal mining operations
which have been released from
applicable State or Federal reclamation
requirements after December 17,1990)
and oil and gas exploration, production,
processing, or treatment operations, or
transmission facilities that discharge
storm water contaminated by contact
with or that has come into contact, with,
any overburden, raw material,
intermediate products, finished
products, byproducts or waste products
located on the site of such-operations;
(inactive mining operations are mining
sites that are not being actively mined,
but which have an identifiable owner/
operator; inactive mining sites do not
include sites where mining claims are
being maintained prior to disturbances
associated with the extraction,
beneficiation, or processing of mined
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48066 Federal Register / Vol. 55. No. 222 / Friday. November 16. 1990 / Rules and Regulations
materials, nor sites where minimal
activities are undertaken for the sok
purpose of maintaining a mining claim):
(iv) Hazardous waste treatment,
storage, or disposal facilities, including
those that are operating under interim
status or a permit under subtitle C of
RCRA;
(v) Landfills, land application sites..
and open dumps that receive or have
received any Industrial wastes (waste
that U received from any of the facilities
described under this subsection)
including those that are subject to
regulation under subtitle D of RCRA;
(vi) Facilities involved in the recycling
of materials, including metal scrapyards.
battery reclaimers, salvage yards, and
automobile junkyards, including but
limited to those classified as Standard
Industrial Classification 5015 and 5093:
(vii) Steam electric power generating
facilities, including coal handling sites:
(viii) Transportation facilities
classified as Standard Industrial
Classifications 40.41.42 (except 4221-
25). 43.44.45, and 5171 which have
vehicle maintenance shops, equipment
cleaning operations, or airport deicing
operations. Only those portions of the
facility that are either involved in
vehicle maintenance (including vehicle
rehabilitation, mechanical repairs.
painting, fueling, and lubrication).
equipment cleaning operations, airport
dclcing operations, or which are
otherwise identified under paragraphs
(bj{14) (ij-fvii) or fJxHxi) °.f this s60150"
are associated with industrial activity:
(ix) Treatment works treating
domestic sewage or any other sewage-
sludge orwastewater treatment device
or system, used in the storage treatment.
recycling, and reclamation of municipal
or domestic sewage, including land
dedicated to the disposal of sewage
sludge that are located within the
confines of the facility, with a design
(low of 1.0 mgd or more, or required to
have an approved pretreatmenl program
under 40 CFR part 403. Net included are
farm lands, domestic gardens or lands
used for sludge management where
sludge is beneficially reused and which
are not physically located in the
confines of the facility, or areas that are
in compliance with section 405 of the
CWA;
(x) Construction activity including
clearing, grading and excavation
activities except: operations- that result
in the disturbance of less than five acres
of total land area which are not part of a
larger common plan of development or
sale:
(xi) Facilities under Standard
Industrial Classifications 20.21,22,23.
2434, 25, 265. 267,27.283* 285, 30. 31
(except 311), 323.34 (except 3441). 35.36.
37 (except 373), 38, 39.4221-25. (and
which are not otherwise included within
categories (ii)-(x));
(c) Application requirements for storm
water discharges associated with
industrial activity—^.Individual
application. Dischargers of storm water
associated with industrial activity are
required to apply for an individual
permit, apply fora permit through a
group application,, or seek coverage
under a promulgated storm water
general permit Facilities that are
required to obtain an individual permit.
or any discharge of storm water which
the Director is evaluating for
designation (see 40 CFR 124.52(cJ) under
paragraph (a)(l](v) of this section and is
not a municipal separate storm sewer.
and which is not part of a group
application described under paragraph
(c}(2) of this section, shall submit an
NPDES application in accordance with
the requirements of § 122.21 as modified
and supplemented by the provisions of
the remainder of this paragraph.
Applicants for discharges composed
entirely of storm water shall submit
Form 1 and Form 2F. Applicants for
discharges composed of storm water
and non-storm water shall submit Form
1. Form 2C. and Form 2F. Applicants for
new sources or new discharges (as
defined in § 122.2 of this part) composed
.of storm water and non-storm water
shall submit Form 1, Form 2D. and Form
2F.
(i) Except as provided in § 122.26{c){l)
(ii)-(iv), the operator of a storm water
discharge associated with industrial
activity subject to this section shaH
provide:
(A) A site map-showing topography
(or indicating the outline of drainage
areas served by the outfall(s) covered in
the application if a topographic map is
unavailable) of the facility including:
each of its drainage and. discharge
structures; the drainage area of each
storm water outfall: paved areas and
buildings within the drainage area of
each storm water outfall, each past or
present area used for outdoor storage or
disposal of significant materials, each
existing structural control measure to
reduce pollutants in storm water runoff.
materials loading and access areas,
areas where pesticides, herbicides, soil
conditioners and fertilizers are applied,
each of its hazardous waste treatment.
storage or disposal facilities (including
each area riot required to have a RCRA
permit which is used for accumulating
hazardous waste under 40 CFR 262.34};
each welt where fluids from .the facility
are infected underground; springs, and
other surface water bodies which
receive storm water-discharges from the
facility;
(B) An estimate of the area of
impervious surfaces (including paved
areas and building roofs) and the total
area drained by each outfall (within a
mile radius of the facility) and a
narrative description pf .the following:
Significant materials that in the three
years prior to the submittai of this
application have been treated, stored or
disposed in a manner to allow exposure
to storm water; method of treatment.
storage or disposal of such materials;
materials management practices
employed, in the three years prior to the
submittai of this application, to
minimize contact by these materials
with storm water runoff; materials
loading and access areas; the location.
manner and frequency in which
pesticides, herbicides, soil conditioners
and fertilizers are applied; the location
and a description of existing structural
and non-structural control measures to
reduce pollutants in storm water runoff;
and a description of the treatment the
storm water receives, including the
ultimate disposal of any solid or fluid
wastes other than by discharge;
(C) A certification that all outfalls thai
should contain storm water discharges
associated with industrial activity have
been tested or evaluated for the
presence of non-storm water discharges
which are not covered by a NPDES
permit; testa for such non-storm water
discharges may include smoke tests.
fluorometric dye tests, analysis of
accurate schematics, as well as other
appropriate tests. The certification shall
include a description of the method
used, the date of any testing, and the on-
site drainage points that were directly
observed during a test;
(D) Existing information regarding
significant leaks or spills of toxic or
hazardous pollutants at the facility that
have taken place within the three years
prior to the submittai of this application;
(E) Quantitative data based on
samples collected during storm events
and collected In accordance with
§ 122.21 of this part from all outfalls
containing a storm water discharge
associated with industrial activity fo«
the following parameters:
{!}. Any pollutant limited in- an effluen
guideline to-'which the facility is subject:
(2] Any pollutant listed in the facility's
NPDES permit for its process
wastewater (if the facility is operating
under an existing NPDES permit);
(,?) Oil and grease. pH. BODS, COD.
TSS, total phosphorus, total Kjeldahl
nitrogen, and nitrate plus nitrite
nitrogen;
(4} Any information on the discharge
required under paragraph & 122.21(g)(7)
(iii) and-(iv) of this fiart;
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Federal Register / Vol. 55. No. 222 / Friday. November. 16. 1990 [Rules and Regulations
48067
(5) Flow measurements or estimates of
the flow rate, and the total amount of
discharge for the storm event(s)
sampled, and the method of flow
measurement or estimation; and
(6] The date and duration (in hours) of
the storm event(s) sampled, rainfall
measurements or estimates of the storm
event (in inches) which generated the
sampled runoff and the duration
between the storm event sampled and
the end of the previous measurable
(greater than 0.1 inch rainfall) storm
event (in hours);
(F) Operators of a discharge which is
composed entirely of storm water are
exempt from the requirements of
§ 122.21 (g)(2). (g)(3), (g)(4), (g)(5),
(g)(7)(i), (g)(7)(ii), and (g)(7)(v); and
(G) Operators of new sources or new
discharges (as defined in § 122.2 of this
part) which are composed in part or
entirely of storm water must include
estimates for the pollutants or
parameters listed in paragraph
(c)(l)(i)(E) of this section instead of
actual sampling data, along with the
source of each estimate. Operators of
new sources or new discharges
composed in part or entirely of storm
water must provide quantitative data for
the parameters listed in paragraph
(c)(l)(i)(E) of this section within two
years after commencement of discharge,
unless such data has already been
reported under the monitoring
requirements of the NPDES permit for
the discharge. Operators of a new
source or new discharge which is
composed entirely of storm water are
exempt from the requirements of
§ 122.21 (k)(3)(ii). (k)(3)(iii), and (k)(5).
(u) The operator of an existing or new
storm water discharge that is associated
with industrial activity solely under
paragraph (b)(14)(x) of this section, is
exempt from the requirements of
§ 122.21(g) and paragraph (c)(l)(i) of this
section. Such operator shall provide a
narrative description of:
(A) The location (including a map)
and the nature of the construction
activity;
(B) The total area of the site and the
area of the site that is expected to
undergo excavation during the life of the
permit;
(C) Proposed measures, including best
management practices, to control
pollutants in storm water discharges
during construction, including a brief
description of applicable State and local
erosion and sediment control
requirements;
(D) Proposed measures to control
pollutants in storm water discharges
that will occur after construction
ope. ations have been completed,
incl .ding a brief description of
applicable State or local erosion and
sediment control requirements;
(E) An estimate of the runoff
coefficient .of the site and the increase in
impervious area after the construction
addressed in the permit application is
completed, the nature of fill material
and existing data describing the soil or
the quality of the discharge; and
(F) The name of the receiving water.
(iii) The operator of an existing or new
discharge composed entirely of storm
water from an oil or gas exploration,
production, processing, or treatment
operation, or transmission facility is not
required to submit a permit application
in accordance with paragraph (c)(l)(i) of
this section, unless the facility:
(A) Has had a discharge of storm
water resulting in the discharge of a
repprtable quantity for which
notification is or was required pursuant
to 40 CFR 117.21 or 40 CFR 302:6 at
anytime since November 16,1987; or
(B) Has had a discharge of storm
water resulting in the discharge of a
repprtable quantity for which
notification is or was required pursuant
to 40 CFR 110.6 at any time since
November 16,1987; or
(C) Contributes to a violation of a
water quality standard.
(iv) The operator of an existing or new
discharge composed entirely of storm
water from a mining operation is not
required to submit a permit application
unless the discharge has come into
contact with, any overburden, raw
material, intermediate products, finished
product, byproduct or waste products
located on the site of such operations.
(v) Applicants shall provide such
other information the Director may
reasonably require under § 122.21(g)(13)
of this part to determine whether to
issue a permit and may require any
facility subject to paragraph (c)(l)(ii) of
this section to comply with paragraph
(c)(l)(i) of this section.
(2) Group application for discharges
associated with industrial activity. In
lieu of individual applications or notice
of intent to be covered by a general
permit for storm water discharges
associated with industrial activity, a
group application may be filed by an
entity representing a group of applicants
(except facilities that have existing
individual NPDES permits for storm
water) that are part of the same
subcategory (see 40 CFR subchapter N,
part 405 to 471) or, where such grouping
is inapplicable, are sufficiently similar
as to be appropriate for general permit
coverage under § 122.28 of this part. The
part 1 application shall be submitted to
the Office of Water Enforcement and
Permits, U.S. EPA. 401 M Street, SW.,
Washington, DC 20460 (EN-336) for
approval. Once a part 1 application is
approved, group applicants are to
submit Part 2 of the group application to
the Office of Water Enforcement and
Permits. A group application shall
consist of:
(i) Part 1. Part 1 of a group application
shall:
(A) Identify the participants in the
group application by name and location.
Facilities participating in the group
application shall be listed in nine
subdivisions, based on the facility
location relative to the nine
precipitation zones indicated in
appendix E to this part.
(B) Include a narrative description
summarizing the industrial activities of
participants of the group application and
explaining why the participants, as a
whole, are sufficiently similar to be a
covered by a general permit;
(C) Include a list of significant
materials stored exposed to
precipitation by participants in the
group application and materials
management practices employed to
diminish contact by these materials with
precipitation and storm water runoff;
(D).Identify ten percent of the
dischargers participating in the group
application (with a minimum of 10
dischargers, and either a minimum of
two dischargers from each precipitation
zone indicated in appendix E of this part
in which ten or more members of the
group are located, or one discharger
from each precipitation zone indicated
in appendix E of this part in which nine
or fewer members of the group are
located) from which quantitative data
will be submitted in part 2. If more than
1,000 facilities are identified in a group
application, no more than 100
dischargers must submit quantitative
data in Part 2. Groups of between four
and ten dischargers may be formed.
However, in groups of between four ana
ten, at least half the facilities must
subm.it quantitative data, and at least
one facility in each precipitation zone in
which members of the group are located
must submit data. A description of why
the facilities selected to perform
sampling and analysis are
representative of the group as a whole in
terms of the information provided In
paragraph (c)(l) (i)(B) and (i)(C) of this
section, shall accompany this section.
Different factors impacting the nature of
the storm water discharges, such as
processes used and material
management, shall be represented, to
the extent feasible, in a manner roughly
equivalent to their proportion in the
group.
(ii) Part 2. Part 2 of a group
application shall contain quantitative
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4JOM
Federal Register / Vol. 55. No. 222 f Friday, November 1ft, 1990 /. Rales and Regolations
data (NPDES Fonn 2F). as modified by
paragraph (c)(l) of this section; so that
when parti and part 2 of the group
application are taken together, a
complete NPDES application (Form I,
Form 2C, and Form 2F) can be evaluated
for each discharger identified in
paragraph (c)(2)(i)(D) of this section.
(d) Application requirements for large
and medium municipal separate storm
sewer discharges. The operator of a
discharge from a large or medium
municipal separate storm sewer or a
municipal separate storm sewer that is
designated by the Director under
paragraph (a)(l)(v) of this section, may
submit a jurisdiction-wide or system-
wide permit application. Where more
than one public entity owns or operates
a municipal separate storm sewer within
a geographic area (including adjacent or
interconnected municipal separate
storm sewer systems), such operators
may be a coapplicant to the same
application. Permit applications for
discharges from large and medium
municipal storm sewers or municipal
storm sewers designated under
paragraph (a)(l)(v) of this section shall
Include;
(1) Part 1. Part 1 of the application
shall consist of;
•(i) General information. The
applicants' name, address, telephone
number of contact person, ownership
status and status as a State or local
government entity.
(II) Legal authority. A description of
existing legal authority to control
discharges to the municipal separate
storm sewer system. When existing
legal authority is not sufficient to meet
the criteria provided in paragraph
(d)(2)(i) of this section, the description
shall list additional authorities as will
bo necessary to meet the criteria and
shall include a schedule and
commitment to seek such additional
authority that will be needed to meet the
criteria.
(ill) Source identification. (A) A
description of the historic use of
ordinances, guidance or other controls
which limited the discharge of non-
storm water discharges to any Publicly
Owned Treatment Works serving the
same area as the municipal separate
storm sewer system.
(B) A USGS 7.5 minute topographic
map (or equivalent topographic map
with a scale between 1:10,000 and
1:24,000 if cost effective) extending one
mile beyond the service boundaries of
the municipal storm sewer system
covered by the permit application.The
following hiformationvshall be provided:
(2) The location of known municipal
storm sewer system outfalls discharging
to waters of the United States;
[2} A description of the land use
activities {e.g. divisions indicating
undeveloped, residential, commercial,
agricultural and industrial uses)
accompanied with estimates of
population densities and projected
growth For a ten year period within the
drainage area served by the separate
storm sewer. For each land use type, an
estimate of an average runoff coefficient
shall be provided;
{3\ The location and a description of
the activities of the facility of each
currently operating or closed municipal
landfill or other treatment, storage or
disposal facility for municipal waste;
(4) The location and the permit
number of any known discharge to the
municipal storm sewer that has been
issued a NPDES permit;
(5) The location of major structural
controls for storm water discharge
(retention basins, detention basins,
major infiltration devices, etc.); and
(6) The identification of publicly
•owned parks, recreational areas, and
other open lands.
(iv) Discharge characterization. (A)
Monthly mean rain and snow fall
estimates (or summary of weather
bureau data) and the monthly average
number of storm events.
(B) Existing quantitative data
describing the volume and quality of
discharges from the municipal storm
sewer, including a description of the
outfalls sampled, sampling procedures
and analytical methods used.
(C) A list of water bodies that receive
discharges from the municipal separate
storm sewer system, including
downstream segments, lakes and
estuaries, where pollutants from the
system discharges may accumulate and
cause water degradation and a brief
description of known water quality
impacts. At a minimum, the description
of impacts shall include a description of
whether the water bodies receiving such
discharges have been:
(1] Assessed and reported in section
305(b) reports submitted by the State,
the basis for the assessment (evaluated
or monitored), a summary of designated
use support and attainment of Clean
Water Act (CWA) goals (fishable and
swimmable waters), and causes of
nonsupport of designated uses;
[2] Listed under section 304[l)(l)(A)(i),
section 304fl)(l)(A)(ii), or section
304(1)(1)(B) of-the CWA that is not
expected to meet water quality
standards or water quality goals;
(3) Listed in State Nonpoint Source
Assessments required by section 319(a)
of the CWA that, without additional
.action to control nonpoint sources of
pollution, cannot reasonably be
expected to attain or maintain water
quality standards due to storm sewersv
construction, highway, maintenance and
runoff from municipal landfills and
municipal sludge adding significant
pollution (or contributing to,a violation
of water quality standards);
(4) Identified and classified according
to eutrophic condition of publicly owned
lakes listed in State reports required
under section 314(a} of the CWA
(include the following: A description of
those publicly owned lakes for which
uses are known to be impaired; a
description of procedures, processes and
methods to control the discharge of
pollutants from municipal separate
storm sewers into such lakes; and a
description of methods and procedures
to restore the quality of such lakes);
(5) Areas of concern of the Great
Lakes identified by the International
Joint Commission;
(€) Designated estuaries under the
National Estuary Program under section
320 of the CWA;
[V] Recognized by the applicant as
highly valued or sensitive waters;
(8) Defined by the State or U.S. Fish
and Wildlife Services's National
Wetlands Inventory as wetlands; and
(9) Found to have pollutants in bottom
sediments, fish tissue or biosurvey data.
(D) Field screening. Results of a field
screening analysis for illicit connections
and illegal dumping for either selected
field screening points or major outfalls
covered in the permit application. At a
minimum, a screening analysis shall
include a narrative description, for
either each field screening point or
major outfall, of visual observations
made during dry weather periods. If any
flow is observed, two grab samples shall
be collected during a 24 hour period
with a minimum period of four hours
between samples. For all such samples,
a narrative description of the color,
odor, turbidity, the presence of an oil
sheen or surface scum as welf as any
other relevant observations regarding
the potential presence of non-storm
water discharges or illegal dumping
shall be provided. In addition, a
narrative description of the results of a
field analysis using suitable methods to
estimate pH, total chlorine, total copper,
total phenol, and detergents .(or
surfactants) shall be provided along
with a description of the flow rate:
Where the field analysis does not
involve analytical methods approved
under 40 CFR part 136, the applicant
shall provide a description of the
method used including the name of the
manufacturer of the test method along
with the range and accuracy of the, test.
Field screening points shall be either
major outfalls or other outfall points (or
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Federal Register / Vol. 55. No. 222 / Friday. November 16. 1990 / Rules and Regulations 480SS
any other point of access, such, as
manholes) randomly located throughout
the storm sewer system fay, placing a
grid over a drainage system map and
identifying those cells of the grid which
contain a segment of the storm sewer
system or major outfall. The field
screening points shall be established
using the following guidelines and
criteria:
(i) A grid system consisting of
perpendicular north-south and east-West
lines spaced % mile apart shall be
overlayed on a map of the municipal
storm sewer system, creating, a series of
cells;
(2} All cells that contain a segment of
the storm sewer system shall be
identified; one field screening point shall
be selected in each cell; major outfalls
may be used as field screening points;
(3) Field screening points should be
located downstream of any sources of
suspected illegal or illicit activity;
{4} Field screening points shall be
located to the degree practicable at the
farthest manhole or other accessible
location downstream in the system,
within each cell; however, safety of
personnel and accessibility of the
location should be considered in making
this determination;
(5} Hydrological conditions; total
drainage area of the site; population
density of the site; traffic density; age of
the structures or' buildings in the area;
history of the area; and land use types;
[6] For medium municipal separate
storm sewer systems, no more than 250
cells need to have identified field
screening points; in large municipal
separate storm sewer systems, no more
than 500 cells need to have identified
field screening points; cells established
by the grid that contain no storm sewer
segments will be eliminated from
consideration; if fewer than 250 cells in
medium municipal sewers are created,
and fewer than 500 in large systems are
created by the overlay on the municipal
sewer map, then all those cells which
contain a segment of the sewer system
shall be subject to field screening
(unless access to the separate storm
sewer system is impossible); and
(7) Large or medium municipal
separate storm sewer systems which are
unable to utilize the procedures
described in paragraphs (d)(l)(iv)(D) (1}
through {6} of this section, because a
sufficiently detailed map of the separate
storm sewer systems is unavailable,
shall field screen no more than 500 or
250 major outfalls respectively (or all
major outfalls in the system, if less); in
such circumstances, the applicant shall
establish a grid system consisting of
north-south and east-west lines spaced
V4 mile apart as an'overlay to the
boundaries of the municipal storm sewer
system, thereby creating a series of
cells; the applicant will then select
major outfalls in as many cells as
possible until at least 500 major outfalls
(large municipalities) or 250 major
outfalls (medium municipalities) are
selected; a field screening analysis shall
be undertaken at these major outfalls.
(E) Characterization plan. Information
and a proposed program to meet the
requirements of paragraph (d)(2)(iii) of
this section. Such description shall
include: the location of outfalls or field
screening points appropriate for
representative data collection under
paragraph (d)(2)(iii)(A) of this section, a
description of why the outfall or field
screening point is representative, the
seasons during which sampling is
intended, a description of the sampling
equipment. The proposed location of
outfalls or field screening points for such
sampling should reflect water quality
concerns (see paragraph (d)(l)(iv)(C) of
this section) to the extent practicable.
(v) Management programs. (A) A
description of the existing management
programs to control pollutants from the
municipal separate storm sewer system.
The description shall provide
information on existing structural and
source controls, including operation and
maintenance measures for structural
controls, that are currently being
implemented. Such controls may
include, but are not limited to:
Procedures to control pollution resulting
from construction activities; fioodplain
management controls; wetland
protection measures; best management
practices for new subdivisions; and
emergency spill response programs. The
description may address controls
established under State law as well as
local requirements.
(B) A description of the existing
program to identify illicit connections to
the municipal storm sewer system. The
description should include inspection
procedures and methods for detecting
and preventing illicit discharges, and
describe areas where this program has
been implemented.
(vi) Fiscal resources. (A) A
description of the financial resources
currently available to the municipality
to complete part 2 of the permit
application. A description of the
municipality's budget for existing storm
water programs, including an overview
of the municipality's financial resources
and budget, including overall
indebtedness and assets, and sources of
funds for storm water programs.
(2) Part 2. Part 2 of the application
shall consist of:
(i) Adequate legal authority. A
demonstration that the applicant can
operate pursuant to legal authority
established by statute, ordinance or
series of contracts which authorizes or
enables the applicant at a minimum to:
(A) Control through ordinance, permit,
contract, order or similar means, the
contribution of pollutants to the
municipal storm sewer by storm water
discharges associated with industrial
activity and the quality of storm water
discharged from sites of industrial
activity;
(B) Prohibit through ordinance, order
or similar means, illicit discharges to the
municipal separate storm sewer;
(C) Control through ordinance, ordei
or similar means the discharge to a
municipal separate storm sewer of
spills, dumping or disposal of materials
other than storm water;
(D) Control through interagency
agreements among coapplicants the
contribution of pollutants from one
portion of the municipal system to
another portion of the municipal system;
(E) Require compliance with
conditions in ordinances, permits,
contracts or orders; and
(F) Carry out all inspection,
surveillance and monitoring procedures
necessary to determine compliance and
noncompliance with permit conditions
including the prohibition on illicit
discharges to the municipal separate
storm sewer.
(ii) Source identification. The location
of any major outfall that discharges to
waters of the United States that was not
reported under paragraph (d)(l)(iii)(B)(i)
of this section. Provide an inventory,
organized by watershed of the name and
address, and a description (such as SIC
codes) which best reflects the principal
products or services provided by each
facility which may discharge, to the
municipal separate storm sewer, storm
water associated with industrial
activity;
(iii) Characterization data. When
"quantitative data" for a pollutant are
required under paragraph
(d)(a)(iii)(A)(3) of this paragraph, the
applicant must collect a sample of
effluent in accordance with 40 CFR
122.21(g)(7) and analyze it for the
pollutant in accordance with analytical
methods approved under 40 CFR part
136. When no analytical method is
approved the applicant may use any
suitable method but must provide a
description of the method. The applicant
must provide information characterizing
the quality and quantity.of discharges
covered in the permit application,
including:
(A) Quantitative data from
representative outfalls designated by the
Director (based on information received
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48070 Federal Register / Vol. 55. No. 222 /Friday, November 16. 1990 / Rules and Regulations
in part 1 of the application, the Director
shall designate between five and ten
outfalls or field screening points as
representative of the commercial,
residential and industrial land use
activities of the drainage area
contributing to the system or, where
there are less than five outfalls covered
in tha application, the Director shall
designate all outfalls) developed as
follows:
(1} For each outfall or field screening
point designated under this
subparagraph, samples shall be
collected of storm water discharges from
three storm events occurring at least one
month apart in accordance with the
requirements at § 122.21(g)(7) (the
Director may allow exemptions to
sampling three storm events when
climatic conditions create good cause
for such exemptions);
(2) A narrative description shall be
provided of the date and duration of the
storm event(s) sampled, rainfall
estimates of the storm event which
generated the sampled discharge and
the duration between the storm event
sampled and the end'of the previous
measurable (greater than 0.1 inch
rainfall) storm event;
(3) For samples collected and
described under paragraphs (d)(2)(iii)
(A){2) and (A)(2) of this section,
quantitative data shall be provided for:
the organic pollutants listed in Table II;
the pollutants listed in Table III (toxic
metals, cyanide, and total phenols) of
appendix D of 40 CFR part 122, and for
the following pollutants:
Total suspended solids (TSS)
Total dissolved solids (TDS)
COD
BOD*
Oil and grease
Fecal conform
Fecal streptococcus
PH
Total Kjcldahl nitrogen
Nitrate plus nitrite
Dissolved phosphorus
Total ammonia plus organic nitrogen
Total phosphorus
[4] Additional limited quantitative
data required by the Director for
determining permit conditions (the
Director may require that quantitative
data shall be provided for additional
parameters, and may establish sampling
conditions such as the location, season
of sample collection, form of
precipitation (snow melt, rainfall) and
other parameters necessary to insure
representativeness);
(B) Estimates of the annual pollutant
load of the cumulative discharges to
waters of the United States from all
identified municipal outfalls and the
event mean concentration of the
cumulative discharges to waters of the
United States from all identified
municipal outfalls during a storm event
(as described under § 122.21(c)(7)) for
BODs, COD, TSS. dissolved solids, total
nitrogen, total ammonia plus organic
nitrogen, total phosphorus, dissolved
phosphorus, cadmium, copper, lead, and
zinc. Estimates shall be accompanied by
a description of the procedures for
estimating constituent loads and
concentrations, including any modelling,
data analysis, and calculation methods;
(C) A proposed schedule to provide
estimates for each major outfall
identified in either paragraph (d)(2)(ii) or
(d)(l)(iii)(B)(7) of this section of the
seasonal pollutant load and of the event
mean concentration of a representative
storm for any constituent detected in
any sample required under paragraph
(d)(2)(iii)(A) of this section; and
(D) A proposed monitoring program
for representative data collection for the
term of the permit that describes the
location of outfalls or field screening
points to be sampled (or the location of
instream stations), why the location is
representative, the frequency of
sampling, parameters to be sampled,
and a description of sampling
equipment.
' (yv) Proposed management program. A
proposed management program covers
the duration of the permit. It shall
include a comprehensive planning
process which involves public
participation and where necessary
intergovernmental coordination, to
reduce the discharge of pollutants to the
maximum extent practicable using
management practices, control '
techniques and'system, design and
engineering methods, and such other
provisions which are appropriate. The
program shall also include a description
of staff and equipment available to
implement the program. Separate
proposed programs may be submitted by
each coapplicant. Proposed programs
may impose controls on a systemwide
basis, a watershed basis, a jurisdiction
basis, or on individual outfalls. Proposed
programs will be considered by the
Director when developing permit
conditions to reduce pollutants in
discharges to the maximum extent
practicable. Proposed management
programs shall describe priorities for
implementing controls. Such programs
shall be based on:
(A) A description of structural and
source control measures to reduce
pollutants from runoff from commercial
and residential areas that are
discharged from the municipal storm
sewer system that are to be
implemented during the life of the
permit, accompanied with an estimate of
the expected reduction of pollutant' .
loads and a proposed schedule for
implementing such controls. At a
minimum, the description shall include:
(1) A description of maintenance
activities and a maintenance schedule
for structural controls to reduce
pollutants (including floatables) in
discharges from municipal separate
storm sewers;
(2) A description of planning
procedures including a comprehensive
master plan tb develop, implement and
enforce controls to reduce the discharge
of pollutants from municipal separate
storm sewers which receive discharges
from areas of new development and
significant redevelopment. Such plan
shall address controls to reduce
pollutants in discharges from municipal
separate storm sewers after construction
is completed. (Controls to reduce
pollutants in discharges from municipal
separate storm sewers containing
construction site runoff are addressed in
paragraph (d)(2)(iy)(D) of this section;
(3) A description of practices for
operating and maintaining public
streets, roads and highways and
procedures for reducing the. impact on
receiving waters of discharges from
municipal storm sewer .systems,
including pollutants discharged as a
result of deicing activities;
(4) A description of procedures to
assure that flood management projects
assess the impacts on the water quality
of receiving water bodies and that
existing structural flood control devices
have been evaluated to determine if
retrofitting the-device to provide
additional pollutant removal from storm
water is feasible;
(5) A description of a program to
monitor pollutants in runoff from.
operating or. closed municipal landfills
or other treatment, storage or disposal
facilities for municipal waste, which
shall identify priorities and procedures
for inspections and establishing and
implementing control measures for. such
discharges (this program can be
coordinated with the program developed
under paragraph (d)(2)(iv)(C) of this
section); and
(6) A description of a program to
reduce to the maximum extent
practicable, pollutants in discharges
from municipal separate storm sewers
associated with the application of
pesticides, herbicides and fertilizer
which will include, as appropriate,
controls such as educational activities,
permits; certifications and other
measures for -commercial applicators
and distributors, and controls for
application in public right-of-ways and
at municipal facilities.
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Federal Register / Vol. 55. NQ. 222 /Friday. November 16, 1990 / Rules and Regulations
48071
(B) A description of a program,
including a schedule, to detect and
remove (or require the discharger to the
municipal separate storm sewer to
obtain a separate NPDES permit for)
illicit discharges and improper disposal
into the storm sewer. The proposed
program shall include:
(1) A description of a program,
including inspections, to implement and
enforce an ordinance, orders or similar
means to prevent illicit discharges to the
municipal separate storm sewer system;
this program desciiption shall address
all types of illicit discharges,.however
the following category of non-storm
water discharges or flows shall be
addressed where such discharges are
identified by the municipality as sources
of pollutants to waters of the United
States: water line flushing, landscape
irrigation, diverted stream flows, rising
ground waters, nncontaminated ground
water infiltration (as defined at 40 CFR
35.2005(20)} to separate storm sewers*
uncomtaminated pumped ground water,
discharges from potable water sources,
foundation drains, air conditioning
condensation, irrigation water, springs,
water from crawl space pumps, footing
drains, lawn watering, individual
residential car washing, flows from
riparian habitats and wetlands,
dechlorinated swimming pool
discharges, and street wash water
(program descriptions shall address
discharges or flows from fire fighting
only where such discharges or flows are
identified as significant sources of
pollutants to waters of the United
States);
(2} A description of procedures to
conduct on-going field screening
activities during the life of the permit,
including areas or locations that will be
evaluated by such field screens;
(3) A description of procedures to be
followed to investigate portions of the
separate storm sewer system that, based
on the results of the field screen, or
other appropriate information, indicate a
reasonable potential of containing illicit
discharges or other sources .of non-storm
water (such procedures may include:
sampling procedures for constituents
such as fecal coliform, fecal
streptococcus, surfactants (MBAS),
residual chlorine, fluorides and
potassium; testing with fluorometric
dyes; or conducting in storm sewer
inspections where safety and other
considerations allow. Such description
shall include the location of storm
sewers that have been identified for
such evaluation);
{4} A description of procedures to
prevent, contain, and respond to spills
that may discharge into tike municipal
separate storm sewer;
(5) A description of a program to
promote, publicize, and facilitate public
reporting of the presence of illicit
discharges or water quality impacts
associated with discharges from
municipal separate storm sewers;
(6) A description of educational
activities, public information activities,
and other appropriate activities to
facilitate the proper management and
disposal of used oil and toxic materials;
and
(7) A description of controls to limit
infiltration of seepage from municipal
sanitary sewers to municipal separate
storm sewer systems where necessary;
(C) A description of a program to
monitor and control pollutants in storm
water discharges .to municipal systems
from municipal landfills, hazardous
waste treatment, disposal and recovery
facilities, industrial facilities that are
subject to section 313 of title IH of the
Superfund Amendments and
Reauthorization Act of 1986 (SARA),
and industrial facilities that the
municipal permit applicant determines
are contributing a substantial pollutant
loading to the municipal storm sewer
system. The program shall:
(1) Identify priorities and procedures
for inspections and establishing and
implementing control measures for such
discharges;
(2] Describe a monitoring program for
storm water discharges associated with
the industrial facilities identified in
paragraph (d)(2)(iv)(C) of this section, to
be implemented during the term of the
permit, including the submission of
quantitative data on the following
constituents: any pollutants limited in
effluent guidelines subcategories, where
applicable; any pollutant listed in an
existing NPDES permit for a facility; oil
and grease, COD. pH, BOD5, TSS, total
phosphorus, total Kjeldahl nitrogen,
nitrate plus nitrite nitrogen, and any
information on discharges required
under 40 CFR 122.21(g)(7) (iii) and (iv).
(D) A description of a program to
implement and maintain structural and
non-structural best management
practices to reduce pollutants in storm
water runoff from construction, sites to
the municipal storm sewer system,
which shall include:
(1] A description of procedures for site
planning which Incorporate
consideration of potential water quality
impacts;
[2] A description of requirements for
nonstructural and structural best
management practices;
(3) A description of procedures for
identifying priorities for inspecting sites
and enforcing control measures which
consider the nature of the construction
activity, topography, and the
characteristics of soils and receiving
water quality; and
(4) A description of appropriate
educational and training measures for
construction site operators.
(v) Assessment of controls. Estimated
reductions in loadings of pollutants from
discharges of municipal storm sewer
constituents from municipal storm sewer
systems expected as the result of the
municipal storm water quality
management program. The assessment
shall also identify known impacts of
storm water controls on ground water.
(vi) Fiscal analysis. For each fiscal
year to be covered by the permit, a
fiscal analysis of the necessary capital
and operation and maintenance
expenditures necessary to accomplish
the activities of the programs under
paragraphs (d)(2) (iii) and (iv) of this
section. Such analysis shall include a
description of the source of funds that
are proposed to meet the necessary
expenditures, including legal restrictions
on the use of such funds.
(vii) Where more than one legal entity
submits an application, the application
shall contain a description of the roles
and responsibilities of each legal entity
and procedures to ensure effective
coordination.
(viii) Where requirements under
paragraph (d)(l){iv){E). (d)(2)(ii),
(d)(2)(iii)(B) and (d)(2)(iv) of this section
are not practicable or are not applicable,
the Director may exclude any operator
of a discharge from a municipal separate
storm sewer which, is designated under
paragraph (a)(l)(v), (b)(4)(ii) or (b)(7)(ii)
of this section from such requirements.
The Director shall not exclude the
operator of a discharge from a municipal
separate storm sewer identified in
appendix F, G, H or I of part 122, from
any of the permit application
requirements under this paragraph
except where authorized under this
section.
(e) Application deadlines. Any
operator of a point source required to
obtain a permit under paragraph (a)(l)
of this section that does not have an
effective NPDES permit covering its
storm water outfalls shall submit an
application in accordance with the
following deadlines:
(1) For any storm water discharge
associated with industrial activity
identified in paragraph (b)(14) (i)-(xi) of
this section, that is not part of a group
application as described in paragraph
(c)(2) of this section or which is not
covered under a. promulgated storm
water general permit, a permit
application made pursuant to paragraph
(c) of this section shall be submitted to
the Director by November 18,1991;
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46072 Federal Register / Vol. 55. No. 222 / May. November. 16. 1990 /Rules and Regulation?
(2) For any group application
submitted in accordance with paragraph
(c)(2) of this section:
(1) Part 1 of the application shall be
submitted to the Director, Office of
Water Enforcement and Permits by
March 18,1991;
(II) Based on information in the part 1
application, the Director will approve or
deny the members in the group
application within 60 days after
receiving part 1 of the group application.
(ill) Part 2 of the application shall be
submitted to the Director, Office of
Water Enforcement and Permits no later
than 12 months after the date of
approval of the part 1 application.
(iv) Facilities that are rejected as
members of a group by the permitting
authority shall have 12 months to file an
individual permit application from the
data they receive notification of their
rejection.
(v) A facility listed under paragraph
(b)(14) OH**)of fti» section may add on
to a group application submitted in
accordance with paragraph (e)(2)(i) of
this section at the discretion of the
Office of Water Enforcement and
Permits, and only upon a showing of
good cause by the facility.and the group
applicant; the request for the addition of
tha facility shall be made no later than
February 18,1992; the addition of the
facility shall not cause the percentage of
the facilities that are required to submit
quantitative data to be less than 10%,
unless there are over 100 facilities in the
group that are submitting quantitative
data; approval to become part of group
application must be obtained from the
group or the trade association
representing the individual facilities.
(3) For any discharge from a large
municipal separate storm sewer system;
(i) fart 1 of the application shall be
submitted to the Director by November
18,1991;
(ii) Based on information received in
the part 1 application the Director will
approve or deny a sampling plan under
paragraph (d)(l)(iv)(E) of this section
within 90 days after receiving the part 1
application;
(iii) Part 2 of the application shall be
submitted to the Director by November
16,1992.
(4) For any discharge from a medium
municipal separate storm sewer system;
(i) Part 1 of the application shall be
submitted to the Director by May 18,
1992,
(U) Based on information received in
the part 1 application the Director will
approve or deny a sampling plan under
paragraph (d)(l)(iv)(E) of this section
within SO days after receiving the part 1
application.
(iii) Part 2 of the application shall he
submitted to the Director by May.17,
1993.
(5) A permit application shall-be
submitted to the Director within 60 days
, of notice, unless permission for a later •
date is granted by the Director (see 40
CFR124.S2(c)),fon
{i) A storm water discharge which the
Director, or in States with approved
NPDES programs, either the Director or
the EPA Regional Administrator,
determines that the discharge
contributes to a violation of a water
quality standard or is a significant
contributor of pollutants to waters of the
United States (see paragraph (a)(l)(v) of
this section);
(ii) A storm water discharge subject to
paragraph (c)(l)(v) of this section.
(6) Facilities with existing NPDES
permits for storm water discharges
associated with industrial activity shall
maintain existing permits. New
applications shall be submitted in
accordance with the requirements of 40
CFR 122.21 and 40 CFR 122.26(c) 180
days before the expiration of such-
permits. Facilities with expired permits
or permits due to expire before May 18,
, 1992, shall submit applications in
accordance with the deadline set forth
, under paragraph (e)(l) of this section.
(f) Petitions. (1) Any operator of a
municipal separate storm sewer system
may petition the Director to require a
separate NPDES permit (or a permit
issued under an approved NPDES State
program) for any discharge into the
municipal separate storm sewer system.
(2) Any person may petition the
Director to require a NPDES-permit for a
discharge which is composed entirely of
storm water which contributes to a
violation of a water quality standard or
is a significant contributor of pollutants
to waters of the United States.
(3) The owner or operator of a
municipal separate storm sewer system
may petition the Director to reduce the
Census estimates of the population
served by such separate system to
account for storm water discharged to
combined sewers as defined by 40 CFR
35.2005(b)(ll) that is treated in a
publicly owned treatment works. In
municipalities in which'combined
sewers are operated, the Census
estimates of population may be reduced
proportional to the fraction, based on
estimated lengths, of the length of
combined sewers over the sum of the
length of combined sewers and
municipal separate storm sewers where
an-applicant has submitted the NPDES
permit number associated-with each
discharge point-and a map indicating
areas served by combined sewers and
the.location of any combined sewer
overflow discharge point.
(4) Any person may petition the
Director for the designation of a large or
medium municipal separate storm sewer
system as defined by paragraphs
(b)(4)(iv) or (b)(7)(iv) of this section.
(5) The Director shall make a final
determination on any petition received
under this section within 90 days after
receiving the petition.
6. Section 122.28(b)(2)(i) is revised to
read as follows:
§ 122.28 General permits (applicable to
State NPOES programs, see § 123.25).
* * * '* '. *
(b) * * *
(2) Requiring an individual permit, (i)
The Director may require any discharger
authorized by a general permit to apply
for and obtain an individual NPDES
permit. Any interested person may
petition the Director to take action
under this paragraph. Cases where an
individual NPDES permit may be
required include the following:
(A) The discharger or "treatment
works treating domestic sewage" is not
in compliance with the conditions of the
general NPDES permit;
(B) A change has occurred in the
availability of demonstrated technology
or practices for the control or abatement
of pollutants applicable to the point
source or treatment works treating
domestic sewage;
(C) Effluent limitation guidelines are
promulgated for point sources covered
by the general NPDES permit;
(D) A Water Quality Management
plan con-taiiiing requirements applicable
to such point sources is approved;
(E) Circumstances have c'hanged since
the time of the request to be covered so
that the discharger is no longer
appropriately controlled under the
general permit, or either a temporary or
permanent reduction or elimination of
the authorized discharge is necessary;
(F) Standards for sewage sludge use
or disposal have been promulgated for
the sludge,use and disposal practice
covered by the general NPDES permit;
or
(G) The discharge(s) is a-significant
contributor of pollutants. In making this
determination, the Director may
consider the following factors:
(i) The location of the discharge with
respect to waters of the United States;
(2) The size of the discharge;
(3) The quantity and nature of the,
pollutants discharged to waters of the
United States; and
(4) Other relevant factors;
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Federal Register /Vol.. 55. No. 222 / Friday. November 16. 1990 / Rules and Regulations 48073
7. Section 122.42 is amended by
adding paragraph (c) to read aa follows;
§ 122.42 Additional conditions applicable
to specified categories of NPDES permits
(applicable to State NPOES programs, see
§123,25).
(c) Municipal separate storm sewer
systems. The operator of a large or
medium municipal separate storm sewer
system or a municipal separate storm
sewer that has been designated by the
Director under § 122.26(a)(l)(v) of this
part must submit an annual report by
the anniversary of the date of the
issuance of the permit for such system.
The report shall include:
(1) The status of implementing the
components of the storm water
management program that are
established as permit conditions;
(2) Proposed changes to the storm
water management programs that are
established as permit condition. Such
proposed changes shall be consistent
with § 122.26(d)(2)(iii) of this part; and
(3) Revisions, if necessary, to the
assessment of controls and the fiscal
analysis reported in the permit
application under § 122.26(d){2)(iv) and
(d)(2)(v) of this part;
(4) A summary of data, including
monitoring data, that is accumulated
throughout the reporting year;
(5) Annual expenditures and budget
for year following each annual report;
(6) A summary describing the number
and nature of enforcement actions,
inspections, and public education
programs;
(7) Identification of water quality
improvements or degradation;
7a. Part 122 is amended by adding
appendices E through I as follows:
Appendix E to Part 122—Rainfall Zones, of the United States
Not Shown: Alaska (Zone 7); Hawaii (Zone
7); Northern Mariana islands (Zone 7); Guam
(Zone 7); American Samoa (Zone 7); Trust
Territory of the Pacific Islands (Zone 7);
Puerto Rico (Zone 3} Virgin Islands (Zone 3).
Source; Methodology for .Analysis of
Detention Basins for Control of Urban Runoff
Quality, prepared for U.S. Environmental
Protection Agency, Office of Water, Nonpoint
. Source Division, Washington, DC, 1986.
Appendix F to Part 122—Incorporated
Places With Populations Greater Than
250,000 According to Latest Decennial
Census by Bureau of Census.
State-
Alabama
Arizona
California
Incorporated place
Birmingham.
Tucson.
Los Angeles.
Oakland.
Sacramento.
San Diego.
San Francisco.
San Jose.
State
Colorado
District of Columbia
Florida
Georgia
Illinois
Indiana
Kansas
Kentucky
Louisiana
Maryland
Massachusetts
Michigan
Minnesota
Incorporated place
Denver.
Jacksonville.
Miami.
Tampa.
Atlanta.
Chicago.
Indianapolis.
Wichita.
.Louisville.
New Orleans.
Baltimore
Boston.
Detroit.
Minneapolis
St Paul.
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4M7I Federal Register / VoL 55, No. 222 / Friday, November 16, 1990 / Rtttes and Regulations
State
KffiH£ltfT 1-Tun.m-inmmi
Mftbrairtfti...
WftW Jftf^fly'tuimi-m-i— -i-r— i—
Nttw Wa»oo «—.—.-*.«*-..
NftwYm^.M., , -- -
North CaroSns ««-«,-«««.
Ohio*,. ......... ....,.-Tt,~T
Oklahoma.—..—-,— .,-.—.-
Pdnnsytvania..,.^..— .....=.,..
Tooftdwoo »...^*...»,.M,..«».
TOXAS ™«,tw.«»«.:«M«. «.««•.«•"
Vkmftia ._..... «... «-.
» « y« «*« It .« ;»!•"«**" i i«* «•>•««•••
Washington™. — »
Wisconsin ui n....mn±x-Lr.
Incorporated place
Kansas City
St Louis.
Omaha.
Newark.
Albuquerque.
Buffalo.
Bronx Borough.
Brooklyn Borough.
Manhattan Borough.
Queens Borough.
Staten Island Borough
Chartotto.
Oncinnse.
Cleveland.
Columbus.
Toledo.
OWahowa Crty,
Tulsa.
Portland.
Philadelphia.
Pinsburgh.
Memphis.
Nashville/Davidson.
Austin.
Dallas.
QPaso.
Fort Worth.
Houston.
San Antonio
Norfolk. .
Virginia Beach.
Seattle.
Milwaukee.
Appendix G to Part 122 — Incorporated
Places With Population* Greater Than
100,000 and Less Than 250J300 According
to Latest Decennial Census by Bureau of
Census
State
Alabama .,_,«..»».*-......«..*..
AlaJka,,...-.....,,.... .-..
ArfzOfia .. i
Arkiinsiks M.OWMM ,»..<«»
CaiHorma ~™. ,
Colorado...... ...-
Conrwettetrt .,
CIort/4*
Incorporated place
HiintsvMa.
Mobile.
Montgomery,
Anchorage, '
Mesa.
Tempo.
little Rock.
Anaheim.
Bakersfield,
Befkeloy.
Concord.
Fremont
Fresno.
FuKerton.
Garden Grove
Glendate.
Kuntington Beach:
Modesto.
Ouiard.
Pasadena.
Riverside.
San Bemadtoo
Santa. Ana.
Stockton.
Sunnyvale.
Torrance.
Aurora.
Colorado Springs.
Lakewood.
Pueblo.
Bridgeport.
HarUordL
New Haven.
Stamford.
Waferbury.
fort Lauderdale.
State
Georgia - — —
Idaho...- - - —
Illinois™.-..-™..———
Iowa i_-i--^ i.i- •
^Kentucky
Massachusetts
Michigan ___-
Missouri -
Nevada — -
New Jersey...-
New York
Ohio — ~
Oregon - -
Pennsylvania.:. —
Rhode Island
Texas
Utah . -
Virginia _
Washington
Wisconsin — — .
tacwporatedptace j
Htatesrt.
Hod/wood.
Wanda
SL Petersburg.
X>lumbus.
lacoa
Savannah.
SoisaOty.
Peoria.
Roddord.
EvansviMe.
Vxt Wayne.
3ary.
South Bend.
Cedar Rapids.
>avenport-
)esMo"mes.
(ansas City.
"opeka.
.exington-Fayette.
iaton Rouge.
Shreveport.
Springfield.
Worcester.
Ann Arbor.
Flint.
Brand Rapids
.ansing.
jvonia.
Sterling Heights.
Warren.
Jackson.
^dependence,
Springfield.
jncoln.
-as Vegas.
Reno.
Bizabeth.
Jersey City.
Pa'.erson.
Albany.
Rochester.
Syracuse.
Yonkeis.
Durham. •
Greensboro.
Raleigh.
Winston-SalBm
Akron.
Dayton.
Youngstown
Eugene.
Allentown.
Erie.
Providence
Columbia
Chattanooga.
Knoxville.
Amarillo.
Arlington.
Beaumont.
Corpus Christ!
Gartand.
Inring.
Lubbock.
Pasadena.
Waco.
Salt Lake City
Alexandria.
Chesapeake.
Hampton.
Newport News.
Portsmouth.
Richmond.
Roanoke.
Spokane.
Tacoma.
Madison.
Appendix H to Part 122-^- Counties with
Unincorporated Urbanized Areas With a
Population of 250,000 or More According
to the Latest Decennial Census by the
Bureau of Census
State
California
Delaware. —
Florida—. _._
Georgia — — — -
Hawaii. — —
Maryland ......
Texas
Utah
Virginia
Washington
County
Los Angeles
Sacramento.
San Diego
New Caste...-
Bade .....
OeKatb. __._._.
Honolulu
Anne Arundel
Baltimore. -.
Montgomery...
Prince George's ...
Fairfax- ;..,..—.
King -.
Unincorporat-
ed urbanized
population
912664
449.056
304,758
257,164
781,949
396.379
688.178
271.458
601.308
447.993
450,188
409.601
304.832
527.178
306.800
Appendix I to Part 122 — Counties With
Unincorporated Urbanized Areas
Greater Than 100,000, But Less Than
250,900 According to the Latest
Decennial Census by the Bureau of
Census
State
Alabama — -
Arizona -....,
California
Ftorida.
Georgia
Kentucky
Louisiana.....
North Carolina
Nevada. — -...
Oregon
South Carolina —
Virginia -
County
Pima ...-
Alameda ~.
Contra Costa
Kern
Orange _-
Riverside
San Bernardino ...
Broward
Hiilsborough
Palm Beach
Pinellas '. ....
Polk
Clayton - -.
Cobb
Richmond
Cumberland —
Clark . — :
Muttnomah
Washington ..-.__
Greenvilte—
Rich1andx___
Arlington
Henrieo —
Chesterfield..—-
Snohomish- — .
Pierce
Uninoorporat
ed urbanized
population
102,917
111.47S
187,471
158.452
117.231
210,69:
11 5,71 £
146,64'
159.37C
147,89:
238,2%
245,32
167,08!
194,33<
104,15(
110.CO<
100,74
204,12
118,52
224,95
140,83
142.72
201, 77"
J41.10I
109.344
»3S,39
124,68
152iS9
16t,20
108341
103,43
198,11
PART 123— STATE PROGRAM
REQUIREMENTS
8. :The authority citation for part 123
continues to read as follows:
-------
Federal Register / Vol. 55. No. 222 / Friday, November 16. 1990 / Rules and Regulations 48075
Authority: Clean Water Act. 33 U.S.C. 1251
et seq.
;9, Section 123.25 is amended by
revising paragraph (a)(9) to read as
follows:
§ 123.25 Requirements for permitting.
(a)
(9) § 122.26—(Storm water
discharges);
PART 124—PROCEDURES FOR
DECISIONMAKING
10. The authority citation for part 124
continues to read as follows:
Authority: Resource Conservation and
Recovery Act, 42 U.S.C. 6901 et seq.; Safe
Drinking Water Act, 42 U.S.C. 300f et seq.;
Clean Water Act, 33 U.S.C. 1251 et seq.; and
Clean Air Act, 42 U.S.C. 1857 et seq.
11. Section 124.52 is revised to read as
follows:
§ 124.52 Permits required on a case-by-
case basis.
(a) Various sections of part 122,
subpart B allow the Director to
determine, on a case-by-case basis, that
certain concentrated animal feeding
operations (§ 122.23), concentrated
aquatic animal production facilities
{§ 122.24), storm water discharges
(§ 122.26), and certain other facilities
covered by general permits (§ 122.28)
that do not generally require an
individual permit may be required to
obtain an individual permit because of
their contributions to water pollution.
(b) Whenever the Regional
Administrator decides that an individual
permit is required under this section,
except as provided in paragraph {c} of
this section, the Regional Administrator
shall notify the discharger in writing of
that decision and the reasons for it, and
shall send an application form with the
notice. The discharger must apply for a
permit under § 122.21 within 60 days of
notice, unless permission for a later date
is granted by the Regional
Administrator. The question whether the
designation was proper will remain
open for consideration during the public
comment period under § 124.11 or
§ 124.118 and in any subsequent hearing.
(c) Prior to a case-by-case
determination that an individual permit
is required for a storm water discharge
under this section (see 40 CFR 122.26
(a)(l)(v) and (c)(l)(v)). the Regional
Administrator may require the
discharger to submit a permit
application or other information
regarding the discharge under section
308 of the CWA. In requiring such
information, the Regional Administrator
shall notify the discharger in writing and
shall send an application form with the
notice. The discharger must apply for a
permit under § 122.26 within 60 days of
notice, unless permission for a later date
is granted by the Regional
Administrator. The question whether the
initial designation was proper will
remain open for consideration during
the public comment period under
§ 124.11 or § 124.118 and in any
subsequent hearing.
Note: The following form will not appear in
the Code of Federal Regulation's.
BILLING CODE 6560-50-M
-------
Federal Rfieister / Vol. 55, No. 222 / Friday, November 16,1980 / Rides and Regulations
Ptease print or type Jo the unshaded areas only
EPA (O Number (copy ftomtteml of Farm J)
Form Approved. OMB No. 2.040r0086
/Approval expire? 5/31/9.2
2F i
NPOES;
vvEPA
United States Environmental Protection Agency •
Washington, OC 20460
Application for Permit To Discharge Stormwater
Discharges Associated with industrial Activity
Paperwork Reduction Act Notice
Public reporting burden tor this application Is estimated to average 28.6 hours per application, including time for reviewing instructions.
toju-china existing data sources, gathering and maintaining the date needed, and completing and reviewing the collection of information. Send
comment* regtreRng the burden estimate, any other aspect of this collection of Information, or suggestions for improving this form, including
»OQQ«lioo>which may increase or reduce this burden to: Chief. Information Policy Branch. PM-223. U.S. Environmental Protection Agency.
SaTMSt., SW. Washington, OC 20460, or Director, Office of Information and flegulatory Affairs, Office of Management and Budget.
Washington, OC $0503.
1. Outfall Location
fix each outfall. Kst the fab'lude and longitude of its location to the nearest IS seconds and the name of the receiving water.
A. Outfall Number
B. Latitude
C. Longitude
D. Receiving Water
frame)
II. Improvements
A. Are you now required by any Federal, State, or local authority to meet any implementation schedule for the-construction, upgrading or
operation of wastewater treatment equipment or practices or any other environmental programs which may affect the discharges
described In this application? This includes, but is not limited to, permit conditions, administrative or enforcement orders, enforcement
compliance schedule letters, stipulations, court orders, and grant or loan conditions.
1. Identification of Conditions,
Agreements. Etc.
2. Affected Outfalls
number
source of discharge
3. Brief Description of Project
, 4. Rnal
Compliance Date
a. req. b. pro).
B. You may attach additional sheets describing any additional water pollution (or other environmental projects which may affect your
discharges) you now have under way or which you plan. Indicate whether each program is now under way or planned, and indicate your
actual or planned schedules for construction.
l. Site Drainage Ma
Attach a site map showing topography (or Indicating the outline of drainage areas served by the outfall(s) covered in the application if a
topooraphic map is unavailable) depleting the facility including: each of its intake and discharge structures; the drainage area of each storm
witw outfalt: paved areas and buildings within the drainage area of each storm water outfall, each known past or present areas used for
outdoor storage or disposal of significant materials, each existing structural control measure to reduce pollutants in storm water runoff,
materials loading and access areas, areas where pesticides, herbicides, soil conditioners and fertilizers are applied; each of.its hazardous
waste treatment, storage or disposal units pncluding each area not required to have a RCRA permit which is used for accumulating hazardous
wista under 40 CFR 262,34); each well where fluids from the facility are.injected underground; springs.'and other surface water bodies which
receive alarm water discharges from the facility.
EPA Form 3510-2F (12-88)
Page 1 of 3
Continue on Page 2
-------
Federal Register / VoL 55. No. 222 / Friday, November 16.1990 / Rules and Regulations 48877
Continued from the Front
IV. Narrative Description of Pollutant Source
A. Fot eachjmtfaU.prouUte an estimate ollha area (include unttsi ,™..^
to the outfatt, and an estimate tit tfw total surface area drained by the outfall
areas and building* loofe) drained
Outfall
Number
Area of Impervious Surface
(provide units)
Total Area Drained
(provide units}
Outfatt
Number
Area of Impervious Surface
(provide unltsl
Total Area Drained
B. Provide a narrative description of significant materials that are currently or in the past three years have been treated stored or disposed in
emDtoveed^nlhMaTt^T^ST *#* metn°d °'^ment, storage, or disposal; past and present materials manalemenSes
fhSvSS- ' 5? y ' to.min'm|ze contact by these materials with storm water runoff; materials loading and access areas- and
the location, manner, and frequency in which pesticides, herbicides, soil conditioners, and fertilizers are applied.
e loaon
aon a" a description of existing structural and nonstructural control measures to reduce pollutants in
n^n^thT i?" "'."l? tr8atme?t the st,9!™ water receives. including the schedule and type of maintenance or control
sures and the ultimate disposal of any solid or fluid wastes other than by discharge. _ ""•««•
— -
V. Nonstormwater Discharges
_-_^______^______.^^__^_._.1__._._._,™^™-™TO™^ __
outfall(s) covered by this application have been tested or eTaTuated ' for the"Presence of
nslofmwater dischares fr
us covere y s appcaton have been tested or eauated for thePr
?oMtonoltf^i 3" nonslofmwater discharges from these outfall(s) are identified in either an accompanying
rorint) isianatura ~~~ ~~ - ir.-.- o: ____ ,
ne and Official Title (type or print)
B. Provide a description of the method used, the date of any testing, and the onsite drainage points that were directly observed during a test,
g»^^
l3510-2F(12-88)
Page 2of3
Continue on Page 3
-------
48078 Federal Register / Vol. 55, No. 222 /Friday, November 16.1990 / Rules and Regulations
EPAID Number (copy from Item I of Form 1)
Continued from Page 2
. Complete one set of tables for each outfall. Annotate the outfall number In the space provided.
able? VU-A. Vlt-B. and Vll-C are Included on separate sheets numbered Vll-1 and VII-2.
E: PcienUal discharges not covered by analysis - Is any pollutant listed In.Tabli
cuwenlly use of manufacture as an intermediate or final product or byproduct?
I | Yes (list all such pollutants betow)
UMologjcal Toxicity TestinoJ3at
A. Name & Official Title (type or print)
illutant listed In Table 2F-2 a substance or a component of a substance which yoj
| ' | No (go to Section VIII)
| | No (go to Section IX)
B. Area Code and Phone No.
C Signature
0. Date Signed
EPA Form 35TO-2F (12-88)
Page 3 of 3
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Federal Register /Vol. 55. No. 222 / Friday. November.16.1990L / Rules and Regulations 48079
EPA ID Number (copy from /fern I of Form 1)
Form Approved. OMB No. 2040-0086
Approval expires 5/31/9 2
Part A-
> friformatiort (Contmueef from page 3 of Form 2F}
* '~l °"e
** ""•* P°autanl '" ^ tabte- <*«** °~ tabte tor each outfall. See.
PoButant
and
CAS Number
(if available)
Oil nd Grease
Biological Oxygen
Demand (BODS)
Maximum Values
(include units)
Grab Sample
Taken During
First 30
Minutes
Flow-weighted
Composite
Average Values
(include units)
Grab Sample
Taken During -»
First 30
Minutes
Flow-weighted
Composite
Number
of
Storm
Events
Sampled
:micaJ Oxygen
demand (COO)
Suspended
Solids'fTSS)
Nitrogen
rate plus
Nitrite Nitrogen
Phosphorus
Maximum
Minimum
Maximum
Pollutant
and
CAS Number
(Havailable)
Maximum Values
(include units)
Grab Sample
Taken During
First 30
Minutes
Row-weighted
Composite
Average Values
(include uruts)
Grab Sample
Taken During
First 30
Minutes
Flow-weighted
Composite
Numbe
of
Storm
Events
amph
EPA Form 3510-2F (12-88)
Page VII-1
Continue on Reverse
-------
48080 :Fecteral Register / Vol. 55. No. 222 /. Friday, November 18.1990 / Rutes and Regulations
Continued from affront '
PartC- LM .«ft pollutant .hown in Tables 2F-2.2t~3, and 2F-4*at you know or have reason to believe is present. See the instrucbons for
«ddilion»l^at«il« and requirements. Complete one tatfe for each outfall. _—. L^_
| Part
I"
PotluUnt
•nd
CASNumb«r
Maximum Values
(Includo units)
GrabSampIa
Taken During
first 30
Flow-weighted
Composite
Average Values
(Include units)
Grab Sample
Taken During
first 30
Minutes
Flow-weighted
Composite
lumber
of
Storm
Events
impled
Sources of Pollutants
ihleh resulted In the maximum values for the flow weighted compos te
1.
D»!»of
Storm
2.
Duration
of Storm
3.
Total rainfall
during storm event
(In Inches)
Number of hours between
beginning of storm meas-
ured and end of previous
measurable rain event
5.
Maximum floe rate
during rain event
(gallons/minute or
specify units
Total flow from
rain event-
(gallons or
Specify units)
7.
Season
sample was
taken
Form of
Precipitation
(rainfall,
snovmelt)
allied of flow measurement or estimate.
EPA Form 3510-2F (12-88)
PageVll-2
-------
/ Vol.'55. No. 222 /Friday. November 16.199&/ Rules and Regulations
4tibtfjL
Instructions - Form 2F
Application for Permit to Discharge Storm Water
Associated with Industrial Activity
Who Must File Form 2F
Form 2F must be completed by operators of facilities which discharge storm water associated with industrial
activity or by operators of storm water discharges that EPA is evaluating for designation as a significant
standard0' P *° W3terS °f the ***** Stat6S> °r 8S contributin9 to a Cation of a watt? quality
3^^ St°rm W3ter ™S< «"*" *»" *•<** Form
S»fJfi°^ f discharafesj?f storm water which ar
-------
48082 Federal Register / Vol. 55. No. 222 / Pttday. November 16.1990 / Rules and Regulations
Item I
You may use the map you provided for item XI of Form 1 to determine the latitude and longitude of each of
your outfalls and the name of the receiving water.
Item II-A
If you check -yes' to this question, complete all parts of the chart, or attach a copy of any previous submission
you have made to EPA containing the same Information.
Item II-B
You are not required to submit a description of future pollution control projects if you do not wish to or if none
Is planned.
Item 111
Attach a site map showing topography (or indicating the outline of drainage areas served by the outfall®
covered In the application if a topographic map is unavailable) depicting the facility including:
each of its drainage and discharge structures;
the drainage area of each storm water outfall;
paved areas and buDding within the drainage area of each storm water outfall, each known past or
present areas used for outdoor storage or disposal of significant materials, each existing structural con-
trol measure to reduce pollutants in storm water runoff, materials loading and access areas, areas where
pesticides, herbicides, soil conditioners and fertilizers are applied;
each of its hazardous waste treatment, storage or disposal facilities (including each area not required to
have a RCRA permit which is used for accumulating hazardous waste for less than 90 days under 40 CFR
262.34);
each well where fluids from the facility are injected underground; and
springs, and other surface water bodies which receive storm water discharges from the facility;
ItemlV-A
For each outfall, provide an estimate of the area drained by the outfall which is covered by impervious
surfaces. For the purpose of this application, impervious surfaces are surfaces where storm water runs off at
rates that are significantly higher than background rates (e.g.. predevdopment levels) and jnctade paved
areas building roofs, parking lots, and roadways. Include an estimate of the total area (including a« impervi-
ous and pervious areas) drained by each outfall. The site map required under item 111 can be used to estimate
the total area drained by each outfall.
ItemlV-B
Provide a narrative description of significant materials that are currently or in the past three years have been
treated, stored, or disposed in a manner to allow exposure to storm water; method of treatment, storage or
disposal of these materials; past and present materials management practices employed, in the last three
years, to minimize contact by these, materials with storm water runoff; materials loading and access areas;
and the location, manner, and frequency in which pesticides, herbicides. soB conditioners, and fertilizers are
applied. Significant materials should be identified by chemicar name, form (e.g., powder, liquid.-etc.). and
type of container or treatment unit. Indicate any materials treated, stored, or disposed of together. "Signifi-
cant materials" includes, but isnot limited to: raw materials; fuels; materials such assdvents, detergents, and
plastic pellets; finished materials such as metallic products; raw materials used in food processing or produc-
tion- hazardous substances designated under Section 101(14) of CERCLA; any chemical the facility is re-
quired to report pursuant to Section 313 of Title III of SARA; fertilizers; pesticides; and .waste products, such
as ashes, slag and sludge that have the potential to be released with storm water discharges;
ItemlV-C
For each outfall, structural controls include structures which enclose material handling or storage areas.
covering materials, berms. dikes, or diversion ditches around- manufacturing; production,- storage or-treat-
ment units, retention ponds.-^tc. Nonstructural controls Include practices such as spill prevention-plans.
employee training, visual Inspections, preventive maintenance, and housekeeping measures that are used to
prevent or minimize the potential for releases of pollutants:
EPAForm 3510-2F (12-88)^
I-2
-------
Federal Register / Vol. 55. No. 222 / Friday. November 16.1990 / Rules and Regulations
48083
ItemV
m
a test. A« non-
must
in a
Item VI
or
Item VII-A, B, and C
General Instructions
rffir«s^
A.
co'lectin of the s3"1?165 for the reported analyses should be supervised by a person
^"9 „* indUStrial wastew^r or storm water discharges You may con
t ?awhortyfordetail^ guidance on samplingtechniques and foranswe?s
S; A"y SpecifiC re£luirements contained In the applicable analyttealmefhods should
Th «S3mP^ containers- samP'e Preservation, holding times, the collecSS , of duSSte sam
m . The, ime.when y°u ^P'6 should «» representative, to the extent feasible o yoS Satmem
^
Grab and composite samples are defined as follows:
EPA Form 3510-2F (12-88)
1-3
-------
B
Grab sample: An individual sample of at least 100 remitters collected during the first thirty minutes
(Bassoon thereafter as practicable) of thedischarge. This sample is to be analyzed separately from
the composite sample.
Flow-Wetahted Composite sample: A flow-weighted composite sample may be taken with a oon-
SusSpS^
on of a mMmum of ^sample aliquots taken in each hour of discharge for the entire event or for
100 mHMters and collected wrth a
tional; either the time Interval between each aliquot or the volume of each aliquot
tional to either the stream flow-at the time of sampling or the total stream f*^
the previous aliquot Aliquots may be collected manually or automatically. Where GC/MS Volat. e
Organic Analysis (VOA) b required, aliquots must be combined in the laboratory immediately before
analysis. Only one analysis for the composite sample is required.
Data from samples taken in the past may be used, provided that:
All data requirements are met;
Sampling was done no more than three years before submission; and
All data are representative of the present discharge.
Among the factors which would cause the data to be unrepresentative are significant changes in produc-
tion level, changes In raw materials, processes, or final products, and changes m storm water treatment.
vSn the Agency promulgates new analytical methods in40 CFR Part 136. EPA w* provide .""on
as to when you should use the new methods to generate data on your discharges^ Of course the
Director may request additional information, including current quantitative data, if they determine it to be
necessary to assess your discharges. The Director may aHow or establish aPP"^.8*8*^^
pllna procedures or requirements, including sampling locations, the season in which the sampling takes
place; the minimum duration between the previous measurable storm event and the storm event sam-
pled, the minimum or maximum level of precipitation required for an appropriate storm event, the form
of precipitation sampled (snow melt or rainfall), protocols for collecting samples under 40 CFR Part 1 36,
and additional time for submitting data on a case-by-case basis.
Reporting: All levels must be reported as concentration and as total mass. You may re P°^me ?/ £
StherequIreddatabyattacWngseparateshe^
separate sheets contain all the required information in a format which is consistent wrth pages VIM and
\n\-Z\n spacing and in identification of pollutants and columns. Use the following abbreviations in the
columns headed "Un'rts."
Concentration
ppm parts per million
mg/1 milligrams per liter
ppb parts per billion
ug/1 micrograms per liter
kg kilograms
Mass
Ibs pounds
ton tons (English tons)
mg milligrams
g grams
T tonnes (metric torts)
AN reporting of values for metals must be hi terms of "total recoverable metal." unless:
(1) An applicable, promulgated effluent limitation or standard specifies the limitation for the metal in
dissolved, valent, or total form; or
(2) All approved analytical methods for the metal inherently measure only its dissolved form (e.g..
hexavalent chromium); or
(3) The permitting authority has determined that in establishing case-by-case limitations ft is neces-
sary to express the limitations on the metal in dissolved, valent. or total form to carry out the provi-
sions of the CWA. If you measure only one grab sample and one flow-weighted composite sample
for a given outfaH. complete only the "Maximum Values" columns and insert 1 into the Number o
Storm Events Sampled" column. The permitting authority may require you to conduct additional
analyses to further characterize your discharges.
EPA Form 3510-2F (12-88)
I-4
-------
C.
If ywmeasure more than one value for a grab sample ora flow-weighted composite sample fora given
outfall and those values are representative of your discharge, you must report them. You must desoibe
your method of testing and data analysis. You also must determine the average of afl values within the
last year and report the concentration mass under the "Average Values" columns, and the total number
of storm events sampled under the "Number of Storm Events Sampled" columns.
Analysis: You must use test methods promulgated In 40 CFR Part 136; however, if none has been
promulgated for a particular pollutant, you may use any suitable method for measuring the teveJ of the
poHutant in your discharge provided that you submit a description of the method or a reference to a
published method. Your description should include the sample holding time, preservation techniques
and the quality control measures which you used. If you have two or more substantially identical outfaHs
you may request permission from your permitting authority to sample and analyze only one outfall and
submit the results of the analysis for other substantially identical outfaHs. If your request is granted by the
permitting authority, on a separate sheet attached to the application form, identify which outfall you did
test, and describe why the outfalls which you did not test are substantially identical to the outfall which
you did test.
PartVII-A
Part VM-A must be completed by all applicants for all outfafls who must compiete Form 2F.
Analyze a grab sample collected during the first thirty minutes hyOU, S JTrt ^totoe data- For <"*<**>> acrytonitrfl* 2j4 dintoophenol. and 2-methyW,6
dmitrophenol, you must submit quantitative data if any of these four poHutanfe is expected to be discharged
EPA Form 3510-2F (12-88)
1-5
-------
48086 Federal Register / Vol. 55, No. 222 / Friday. November 16.1990 / Rules and Regulations
In concentrations of 100 ppb or greater. For every pollutant expected to be discharged in concentrations less
than 10 ppb (or 100 ppb for the four pollutants listed above), then you must either submit quantitative data
or briefly describe the reasons the pollutant is expected to be discharged.
Small Business Exemption - If you are a 'small business." you are exempt from the reporting requirements
for the organic toxic pollutants listed in Table 2F-3. There are two ways in which you can qualify as a "small
business". If your facility Is a coal mine, and if your probable total annual production is less than 100,000 tons
per year, you may submit past production data or estimated future production (such as a schedule of esti-
mated total production under 30 CFR 795.14(c)) Instead of conducting analyses for the organic toxic pollu-
tants. If your facility Is not a coal mine, and if your gross total annual sales for the most recent three years
average less than $100.000 per year (in second quarter 1980 dollars), you may submit sales data for those
years instead of conducting analyses for the organic toxic pollutants. The production or sales data must be
for the facility which Is the source of the discharge. The data should not be limited to production or sales for
the process or processes which contribute to the discharge, unless those are the only processes at your
facility. For sales data, in situations Involving intracorporate transfer of goods and services, the transfer price
per unit should approximate market prices forthose goods and services as closely as possible. Sales figures
for years after 1980 should be indexed to the second quarter of 1980 by using the gross national product
price deflator (second quarter of 1980=100). This Index is available in National Income and Product Ac-
counts of the United States (Department of Commerce, Bureau of Economic Analysis).
Table 2F-4: For each outfall, list any pollutant in Table 2F-4 that you know or believe to be present in the
discharge and explain why you believe it to be present. No analysis is required, but if you have analytical
data, you must report them. Note: Under 40 CFR 117.12(a)(2), certain discharges of hazardous substances
(listed at 40 CFR 177.21 or 40 CFR 302.4) may be exempted from the requirements of section 311 of CWA,
which establishes reporting requirements, civil penalties, and liability for cleanup costs for spills of oil and
hazardous substances. A discharge of a particular substance may be exempted if the origin, source, and
amount of the discharged substances are identified in the NPDES permit application or in the permit, if the
permit contains a requirement for treatment of the discharge, and if the treatment is in place. To apply for an
exclusion of the discharge of any hazardous substance from the requirements of section 311, attach addi-
tional sheets of paper to your form, setting forth the following information:
1. The substance and the amount of each substance which may be discharged.
2. The origin and source of the discharge of the substance.
3. The treatment which is to be provided for the discharge by:
a. An onsite treatment system separate from any treatment system treating your normal dis-
charge;
b. A treatment system designed to treat your normal discharge and which is additionally capable
of treating the amount of the substance identified under paragraph 1 above; or
c. Any combination of the above.
See 40 CFR 117.12(a)(2) and (c), published on August 29.1979, in 44 FR 50766r or contact your Regional
Office (Table 1 on Form 1, Instructions), for further information on exclusions from section 311.
PartVil-D
If sampling Is conducted during more than one storm event, you only need to report the information re-
quested In Part VI1-D for the storm event(s) which resulted in any maximum pollutant concentration reported
in Part VII-A. Vll-B. or VII-C.
Provide flow measurements or estimates of the flow rate, and the total amount of discharge for the storm
event(s) sampled, the method of flow measurement, or estimation. Provide the data and duration of the storm
event(s) sampled, rainfall measurements, or estimates of the storm event which generated the sampled runoff
and the duration between the storm event sampled and the end of the previous measurable (greater than Q.1
Inch rainfall) storm event.
PartVII-E
Ust any toxic pollutant listed in Tables 2F-2, 2F-3, or 2F-4 which you currently use or manufacture as an
Intermediate or final product or byproduct. In addition, if you know or have reason to believe that 2,3,7,8-te-
trachlorodibenzo-p-dloxin (TCDD) is discharged or if you use or manufacture 2,4,5-trichlorophenOxy acetic
EPA Form 3510-2F (12-88)
I-6
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™; *:<2>4fl"f'or°Phenoxy) propanoic acid (Silvex. 2.4.5,-TP); 2-(2.4.5-trichlorophenoxyV ethyl
EP/^|e ( L ):ulp-°^imetnvl 0-(2.4.5-tricWofphenyl) phosphorothfoate (Ronnel); 2.45-
»„„• « f» ^ ): °r hexacnlor°Phene (HCP); then list TCDD. The Director may waive or modify the
S nT ,TU dfm°nstrate.tnat ft would ^ unduly burdensome to identify each toxic pollutantand tte
Director has adequate information to issue your permit You may not claim this information as cortfidentia?
however, you do not have to distinguish between use or production of the pollutants oTlSth?a^unte
Item VIII
The permitting authority may ask you to provide additional details after your application is
Item X
The Clean Water Act provides for severe penalties for submitting false information on this application form.
Section 309ls dele9ati°" t0 aPP"cable corP°rate position Under 122.22(a)(1)(ii) rather than to specific
(B) For a partnership or sole proprietorship: by a general partner or the proprietor, respectively; or
(C) For a municipality, State, Federal, or other public agency: by either a principal executive officer
r' ciai-
-
r^
operafons of a pnncipal geographic unit of the agency (e.g. Regional Administrators of
EPAF m 3510-2F (12-88)
I-7
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4B088 Federal Register / Vol. 55. No. 222 / Priday. November 16. 1990 / Rules and
1-A
1-B
1-C
1-D
1-E
1-F
1-Q
1-H
M
1-J
1-K
14.
2-A
2-B
2-C
2-D
2-E
2-F
3-A
3-B
3-C
3-D
4-A
4-B
5-A
5-B
5-C
5-D
5-E
5-F
5-G
5-H
SI
5-J
S-K
5-t
Table 2F-1
Codes for Treatment Units
Physical treatment Processes
Activated Sludge
Aerated Lagoons
Anaerobic Treatment
Nitrificatton-Denltrification
Grit Removal
Microstraining
Mixing
Moving Bed Filters
Multimedia Filtration
Rapid Sand nitration
Reverse Osmosis (Hyperfiltration)
Screening
Sedimentation (Setting)
Slow Sand Filtration
Solvent Extraction
Disinfection (Ozone)
Disinfection (Other)
Bectrochemical Treatment
lon'Exchange
Neutralization
Reduction
Biological Treatment Processes
3-E Pre-Aeration
3-F Spray Irrigation/Land Application
3-Q Stabilization Ponds
3-H Trickling Filtration
Ammonia Stripping
Dialysis
Diatomaceous Earth Filtration
Distillation
Bectrodialysts
Evaporation
Flocculation
Flotation
Foam Fractionation
Freezing
Gas-Phase Separation
Grinding (Commlnutors)
Carbon Adsorption
Chemical Oxidation
Chemical Precipitation
Coagulation
Dechlorination
Disinfection (Chlorine)
1-M Gri
1-N Mi<
1O Mb
1-P Mo
1-Q Mu
1-R Ra
1-S Re
1-T Sc
1-U Se
1-V Sic
1-W So
1-X So
Chemical Treatment Processes
2-G Di:
2-H Dii
2-I Bi
2-J toi
2-K Ns
2-L Re
Discharge to Surface Water
Ocean Discharge Through Outfall
Sludge Treatment and Disposal Processes
Other Processes
4-C
4-D
Reuse/Recycle of Treated Effluent
Underground Injection
Aerobic Digestion
Anaerobic Digestion
Belt Filtration
Centrifugatton
Chemical Conditioning
Chlorine Treatment
Composting
Drying Beds
Butriation
Rotation Thickening
Freezing
Gravity Thickening
5-M
5-N
50
5-P
5-Q
5-R
5-S
5-T
5-U
5-V
5-W
Heat Drying
Heat Treatment
Incineration
Land Application
Landfill
Pressure Filtration
Pyrolysis
Sludge Lagoons
Vacuum Filtration
Vibration
Wet Oxidation
EPA Form 3510-2F (12-88)
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Federal Register / Vol. 55, No. 222 / Friday, November 16,1990 / Rules and Regulations
Table 2F-2
•Conventional and Nonconventional Pollutants Required to Be Tested by Existing Discharger if
Expected To Be Present
Bromide
Chlorine; Total Residual
Color
Fecal Coliform
Fluoride
Nitrate-Nitrite
Nitrogen. Total Kjedahl
Oil and Grease
Phosphorus, Total Radioactivity
Sutfate
Sutlide
Sulfite
Surfactants
Aluminum, Total
Barium, Total
Boron, Total
Cobalt, Total
Iron, Total
Magnesium, Total
Molybdenum, Total
Magnesium, Total
Tin, Total
Titanium, Total
EPA Form 3510-2F (12-88)
1-9
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48090
Federal Register / Vol. 55, No. 222 / Friday, November 16,1990 / Rules and Regulations
Table 2F-3
Toxic pollutants required to be
identified by applicant if expected to be preser?
Antimony^Total
Arsenic. Total
Beryllium, Total
Cadmium, Total
Chromium, To'a"
Aciolein
Aoylonitrile
Benzene
Bromcbxm
Caiboo Tetrachtortde
Chtorobcnzeno
Chlarodibfomomethans
Chtoroethana
2-Chtoroethylvlnyl Ether
Chloroform
2'Chtorophenol
2,4-Dichlorophenol
2.4.D!methylphenol
4,S-Dinitro-O-Cresol
Toxic Pollutants and Total Phenol
Copper, Total
Lead, Total
Mercury, Total
Nickel, Total
, Selenium, Total
GC/MS Fraction Volatile* Compounds
Dichlorobromomethane
1,1-Dichloroethane
1,2-Dichloroethane
1 , 1 -Dichloroethylene
1 ,2-Dichloropropane
1 ,3-Dichloropropylene
Ethylbenzene
Methyl Bromide
Methyl Chloride
Methylene Chloride
Acid Compounds
2,4-Dinitrophenol
2-Nitrophenol
4-Nitrophenot
p-Chloro-M-Creso!
Base/Neutral
Silver, Total
Thallium, ToM
Zinc, Total
Cyanide, Totpl
Phenols, Total
1 ,1 ,2,2,-Tetrachloroethane
Tetrachloroethytene
Toluene
1 ,2-Trans-Dichloroethylene
1,1,1-Trichloroethane
1,1,2-Trichloroethane
Trichloroethylene
Vinyl Chloride
Pentachlorophenol
Phenol
2,4,6-Trichlorophenot
Accnaphthene
Acenaphthylene
Anthracene
Benzidino
Benzo(a)anthracene:
Benzo(a}pytene
3.4.Benzolluofanthene
Benzo(ghi)perylena
Bia(?-chh«oethoxy)methane
BIs(2-chloroethyl)ether
Bis(2-chlotoioop
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Federal Register / Vol. 55. No. 222 / Friday. November 16.1990 / Rules and Regulations 48091
Table 2F-4
Hazardous substances required to be
identified by applicant if expected to be present
Toxic Pollutant
Asbestos
Acetaldehyde
Ally! alcohol
Ally! chloride
Amyl acetate
Aniline
Benzonitrile
Benzyl chloride
Butyl acetate
Butylamine
Carbaryl
Carbofuran
Carbon disulfide
Chlorpyrifos
Coumaphos
Cresol
Crotonaldehyde
Cyclohexane
2,4-D (2,4-Dichlorophenoxyacetic
acid)
Diazinon
Dicamba
Dichlobenil
Dichlone
2,2-Dichloropropionic acid
Dichlorvos
Diethyt amine
Dimethyl am.ne
Hazardous Substances
Dinitrobenzene
Diquat
Disulfoton
Diuron
Epichlorohydrin
Ethion
Ethylene diamine
Ethytene dibromide
Formaldehyde
Furfural
Guthion
Isoprene
Isopropanolamine
Kelthane
Kepone
Malathion
Mercaptodimethur
Methoxychlor
Methyl mercaptan
Methyl methacrylate
Methyl parathion
Mevinphos
Mexacarbate
Monoethyl amine
Monomethyl amine
Naled
Napthenic acid
Nitrotoluene
Parathion
Phenolsulfonate
Phosgene
Propargite
Propylene oxide
Pyrethrins
Quinoline
Resorcinol
Stronthium
Strychnine
• Styrene
2,4,5-T(2,4,5-Trichlorophenoxyacetic
acid)
TOE (Tetrachlorodiphenyl ethane)
2,4,5-TP[2-(2,4,5-Trichlorophenoxy)
propanoic acid]
Trichlorofan
Triethylamine
Trimethylamine
Uranium
Vanadium
Vinyl acetate
Xylene
Xylenol
Zirconium
|FR Doc. 90-26315 Filed 11-9-90 1217 pm|
BILLING CODE 6S60-SO-C
EPA Form 3510-3F 02-88)
1-1
U.S. Government Printing Office : 1991 - 312-014/40025
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