-I-
Thursday
April 2, 1992
Part VI
Environmental
Protection Agency
40 CFR Part 122
National Pollutant Discharge Elimination
System Application Deadlines, General
Permit Requirements and Reporting
Requirements for Storm Water
Discharges Associated With Industrial
Activity; Final Ruie
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3,1394 Federal Register / Vol. 57, No. 64 / Thursday. April 2, 1992 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 122
IFBL-4100-4J
National Pollutant Discharge
Elimination System Application
Deadlines, General Permit
Requirements and Reporting
Requirements for Storm Water
Discharges Associated With Industrial
Activity
AGENCY: Environmental Protection
Agency (EPA).
ACTION; Final rule.
SUMMARY: The Water Quality Act
(WQA) of 1987 added section 402(p) to
the Clean Water Act (CWA). Section
402(p) of the CWA requires the
Environmental Protection Agency [EPA)
to establish phased and tiered
requirements for storm water discharges
under the National Pollutant Discharge
Elimination System (NPDES) program.
On August 16,1991 (56 FR 40948). EPA
requested public comments on several
regulatory and policy issues regarding
NPDES permits for storm water
discharges associated with industrial
activity. On November 5,1991 (56 FR
56549), the Agency also proposed
extending the deadline for submitting
part 2 of group applications for storm
water discharges associated with
Industrial activity.
In response to comment received on
August 10,1991, proposal, today's action,
describes a National Strategy for issuing
NPDES permits for storm water
discharges associated with industrial
activity. Today's action also contains a
final rule that revises minimum NPDES
monitoring requirements for storm water
discharges associated with industrial
activity. In addition, today's rule
establishes minimum requirements for
filing notices of intent to be authorized
to discharge under NPDES general
permits.
Today's rule also establishes a
deadline of October 1,1992 for part Z of
group applications for storm water
discharges associated with industrial
activity. As noted above, this revised
deadline w,as proposed on November 5,
1901. In connection with group
applications, today's rule contains an
amendment to clarify the minimum
number of facilities that must submit
sampling information in part 2 of a group
application.
Finally, today's action codifies several
provisions of Section 1068 of the
Intcrm odal "Surface Transportation
Efficiency Act of 1991 or Transportation
Act Into the I^PDES regulations. Section
1068 of the Transportation Act
addressed permit application deadlines
for storm water discharges associated
with industrial activity from facilities
that were owned or operated by
municipalities. N ,
EFFECTIVE DATE: The final rule becomes
effective May 4,1992.
ADDRESSES: The public record is located
at EPA Headquarters, EPA Public
Information Reference Unit, room 2402,
401M Street, SW. Washington, DC,
20460. A reasonable fee may be charged
for copying.
FOR FURTHER INFORMATION CONTACT:
For further information on the rule
contact the NPDES Storm Water Hotline
at (703) 821-4823 or: Kevin Weiss, Office
of Wastewater Enforcement and
Compliance (EN-336), United States
Environmental Protection Agency, 401M
Street SW.. Washington, DC 20460, (202)
260-9518.
SUPPLEMENTARY INFORMATION:
I. Background
A. Environmental Impacts
B. Water Quality Act of 1987
C. November 16,1990, Permit Application
Regulations .
D. August 16,1991 Notice '
E. November 5,1991 Proposal
F. Inter-modal Surface Transportation
Efficiency Act of 1991
II. Today's Rule - .
A. Long-Term Permit Issuance Strategy
B. Minimum Monitoring and Reporting
Requirements for Storm Water
Discharges
C. Application Requirements for General
Permits
D. Deadline for part 2 of Group
Applications
E. Clarification for Part 2 of Group
Applications
F. Transportation Act Deadlines
HI. Economic Impact
IV. Executive Order 12291
V. Paperwork Reduction Act
VL Regulatory Flexibility Act
VH. APA Requirements
I. Background
The 1972 amendments to the Federal
Water Pollution Control Act (FWPCA,
also referred to as the Clean Water Act _
or CWA), prohibited the discharge of
any pollutant to navigable waters from a
point source unless the discharge is
authorized by a NPDES permit. Efforts
to improve water quality under the
NPDES program have focused
traditionally on reducing pollutants in
discharges of industrial process
wastewater and from municipal sewage
treatment plants. This program
emphasis has 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 controlled adequately, 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 developed
initially 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 exempted statutorily
from the NPDES.program. Controls for
other diffuse sources have been slow to
develop under the NPDES program.
A. Environmental Impacts
Several national assessments have
been conducted to evaluate impacts on
receiving water quality. For the purpose
of these' assessments, urban runoff was
considered to be a diffuse source or
nonpoint source pollution, although in
legal terms, most urban runoff is
discharged through conveyances such as
separate storm sewers or other '
conveyances which are point sources
under the CWA and subject to the
NPDES program.
The "National Water Quality
Inventory, 1990 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 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 States' waters that
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-third of
stream miles, one-half of lake acres and
three-quarters of estuarine waters),
roughly 60 percent to 70 percent 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 categories of diffuse sources),
municipal sewage, industrial (process)
wastewaters, combined sewer
overflows, and natural sources, and then .
to 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 causing
use impairments was assessed and
weighted national averages were
calculated. -''.'' .
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Federal Register / Vol. 57. No. 64 / Thursday, April 2. 1992 / Rules and Regulations ; 11335
Based on 51 States and Territories
that provided information on sources of
pollution, the Assessment also
concluded that pollution from "diffuse
sources such as runoff from agricultural,
urban areas, construction sites, land
disposal activities, and resource
extraction activities is cited by the
States as the leading cause of water
quality impairment.1 Diffuse sources
appear to be increasingly important
contributors of use impairment as
discharges of industrial process
wastewa'ters and'municipal sewage
limited area); £000,000 acres
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11396 Federal Register / Vol. 57. No. 64 / Thursday, April 2, 1992 / Rules and Regulations
Industrial activity: Individual permit
applications and group applications. In
addition, the notice recognizes a third
act of application procedures for storm
Mater discharges associated with
industrial activity: Those associated
with general permits. With these
requirements, EPA is attempting to
Implement a flexible, cost-effective
approach for storm water permit
applications.
The requirements for individual
applications for storm water discharges
associated with industrial activity are
.c.^., . -t
,,4 lity specific narrative
information including: (1) A site map; (2)
an estimate of impervious areas; (3) the
identification of significant materials
treated or stored on site together with
associated materials management and
disposal practices: (4) the location and
description of existing structural and
non-structural controls to reduce
pollutants in storm water runoff; (5) a
certification that all storm water outfalls
have been evaluated for any
unpefmiUed non-storm water
discharges; and (6) any existing
information regarding significant leaks
or spills of toxic or hazardous pollutants
within threa years prior to application
submiltal. In addition, an individual
application must include quantitative
analytical data based on samples
collected on site during storm events.
Under § 122,26(e)(l) of the November 16.
2890 rule, individual applications were
to have been submitted by November 18,
The group application process allows
for facilities with similar storm water
discharges to file a single two part
permit application. Part 1 of a group
application includes a list of the
facilities applying, a narrative
description summarizing the industrial
activities of participants of the group, a
list of significant materials exposed to
precipitation that are stored by
participants and material management
practices employed to diminish contact
of these materials by precipitation (see
40 CFR 122.26(c)(2)(i)). Under the
November 18, 1990 regulations, Part 1 of
the group application was to be
submitted to EPA no later than March
18, 1991.* The regulation provides that
EPA has a 60 day period after receipt to
review the part 1 applications and notify
the groups as to whether they have been
approved or denied as a properly
constituted "group" for purposes of this
alternative application process. Part 2 of
the group application contains detailed
information, including sampling data, on
roughly ten percent of the facilities in
the group (today's notice contains a
more detailed description clarifying the
requirements of 40 CFR 122,26(c)(2)(ii)).
.Under the November 16,1990
regulations, part 2 applications were to
be submitted no later than 12 months . .
* The deadline for submitting an individual permit
application for norm water discharges associated
with indiiitrul activity wai extended from
November 18, 1881 to October 1. 1992 (56 FR 56548,
are discussed below). Also underThe
November 16,1990 regulation, facilities
that are rejected as members of a group
were to have 12 months from the date
they receive notification of their
rejection to file an individual permit
application (or obtain coverage under an
appropriate general permit).8
The group application process has
been designed by EPA as a one-time
administrative procedure to ease the
burden on the regulated community and
permitting authorities in the initial stage
of the storm water program.
The third application'prbcedufe
entails seeking coverage under a general
permit for storm water discharges
associated with industrial activity.
Dischargers covered by a general permit
are excluded under 40 CFR 122.21(a)
from requirements to submit individual
or group permit applications. Conditions
for filing an application to be covered by
a general permit (typically called a
Notice of Intent (NOI)) are established
on a case-by-case, basis. As discussed in
more detail below, today's notice
establishes final minimum requirements
for general permit NOI submissions.
The November 16,1990 regulations
also establish a two part application
process for discharges from municipal
separate storm sewer systems serving a
population of 100,000 or more. The
regulations lists 220 cities and counties
that are defined as having municipal
separate storm sewer systems serving a
population of 100,000 or more and
allows for case-by-case designations of ,
other municipal separate storm sewers
to be part of these systems (55 FR 48073,
48074). The regulations provide that part
1 applications for discharges from large
municipal separate sjtorm sewer systems
* The deadline for submitting part 1 of the group
(tpltcntion wa» extended from March 18, 1991 to
September 30. 1801 (58 FR 1209S (March 21. 1991}).
* The deadline for a facility that is rejected as a
member of a group application to submit an
individual permit application has been revised to
provide that an Individual application must be
submitted no later than 12 months after the date-of
receipt of the notice of rejection or October 1,1992,
whichever comes first (56 FR 56549, {November 5,
1991}).
(systems serving a population of 250,000
or more) were due November 18, 1991.
Part 2 applications for discharges1 from
large systems are due on November 16,
1992. Part 1 applications for discharges
from medium municipal separate storm
sewer systems (systems serving a "
population of. 100,000 or more, but less
than 250,000) are due May 18, 1992. Part
2"applications for discharges from
medium systems are due on May 18,
1993. Today's rulemaking does not
address, modify or change application
requirements or deadlines established
by the November 16, 1990 regulations for
D. August 16, 1991 Notice
On August 16, 1991, EPA published a
notice (56 FR 40948) requesting public
comment on four major areas:
(1) EPA's long-term permit issuance .
strategy for storm water discharges
associated with industrial activity;
(2) Proposed modifications to 40 CER
122.44(i)(2) addressing minimum'
monitoring and reporting requirements
for NPDES permits for storm water ,
discharges associated with industrial
activity; ,
(3) Proposed modifications to 40 CFR
122.28(b)(2) addressing minimum notice
of intent requirements for general
permits;
(4) Draft baseline general permits for .
storm water discharges associated with
industrial activity in 12 States (MA, ME,
NH, FL, LA, TX, OK, MM, SD, AZ, AK,
ID) and 6 Territories (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) without authorized
NPDES State programs; on Indian lands
in AL, CA, GA, KY, MI, MN, MS, MT,
NC, ND, NY, NV, SC. TN, UT, WI, and
WY; located within Federal facilities
and Indian lands in CO and WA; and
located within Federal facilities in
Delaware.
One of the central purposes of today's
notice is to address and/or take final
action on the first three items listed
above. Each of these three items is
discussed in more detail below. The
fourth component of the August 16, 1991
proposal involving draft baseline
general permits for storm water will be
addressed in a, separate rulemaking
presently scheduled for promulgation in
late spring of this year.
E. November 5, 1991 Proposal
On November 5, 1991, (56 FR 56555),
as a result of issues and concerns raised
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/ Thursday^ April 2. 1992 / Hides and Regulations .'. 113197
in bomments on the Match 21, 1991 ~: ; ,
,. " proposed deadline extensions, EPA
, = requested comments on extending the
deadline-for submittirig part 2 of the '-=
group application from May 18, 1992 to ,
October 1, 1992. lathe November 5, 199.1
notice, the Agency indicated that this
. , extension would provide an appropriate
..;' opportunity tq conduct sampling to
t ' . supp'ort the -part 2 application ;and would'
: allow for permit issuing agencies ,tp ?-
'-v -: issue general permits., >-;;:;; ... "- ..
- ~F: Intermadal Surface Transportation
.Efficiency Act of 1991 - '- ;- "
On December 18, 1991, the President
;- signed the Intermodal Surface .
- ' Transportation Efficiency Act (or
. , Transportation Act) of 1991, into.law.
Section 1068 of the Transportation Act
addresses NPDES permit application :
deadlines foir storm water discharges
fassbciated with industrial activity from ;
..-.; facilities that are owned or oper'ated by
'.' ; jmuhcipalities. ; ^'- - : '";-">
Section 1068(b)flj of the ; - - :
Transportation Act provides that EPA
. ..- shall require individual permit !.
applications for storm water discharges
associated with indus'trial activity that ;
.are owned or operated by municipalities
., oh or before October 1, 1992; except that
any municipality that lias participated in
a timely part 1 group application and
, that is denied participation in- the group
application shall not be required to '
submit an individual application until,;
i - the 180th,day following the date on ; . .
which the'denial is made. . ', -
: : Section 1068fb](2)ofthe '' ;- ":;
Transportation Act. provides .that part 1
'of group applications for storm water,
discharges associated with industrial -,'
" activity that are owned or operated by a
municipality with a population of '''-
250,000 or more shall be required on or,; ,
before September 30, 1991, and part 2
applications on or .before .October 1,
1992. Part 1 of group' applications for :
''.'". storm water discharges associated with
^industrial activity that are owned, or
operated by a municipality with a
population of less than 250,000 shall'be \:
required on or before May 18, 1992, and
_ part 2 applications on or before May 17, ~
-- '' - -' "
. ..-- . - ...
(c) of the.Tralisportation
Act provides that EPA shall not require
any municipality with a populatio'n: of
: less than 100,000 to apply for or obtain a
permit for any storm water discharge -
assodated with an industrial ..activity
other than]an airport, pbwerpiant, or . \
. uncoritrqlled sanitary landfill owned or
. operated ,by such municipality before
October 1, 1992, unless a perrhit is
; required by either section 4p2(p){2) (A) .
, "or (E) of the CWA^Seqtion 1066(d) of the ;
- ; Transportation Act defines ;uncpntfQlled
sanitary landfill to mean a landfill or
open dump, whether-open or closed; that
does not meet the requirements for ;
runon and runoff controls established .:.
pursuant to subtitle:D of the,Solid Waste
Disposal Act. 7;~ 7 .'--''/"'.';'.--/.-' ..'-'.'.
Section 1068(e) of the Transportation
Act clarifies that the statutory deadlines
for group and individual applications; \.'.. --
outlined above do .not affect-any storm
water discharge that is subject to the, -
provisions of either sec.tion .402(p)(2}(A) .
, or 402(p)(2)(E) pf the CWA. Section ~
402(p)(2)(A} of the CWA addresses
storm water discharges that had an ,
NPDES permit prior to February 4,1987. ".
Section 402(p)(2HE} of the! CWA
'addresses storm water discharges that
EPA_or the State, as the case maybe;-:;'::;
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 oiP
the United States. As discussed in more
.detail below, today's rule codifies the
application provisions of Section 1068 of
the. Transportation. Act. ,
II. Today's Rule , '..'' : ,
, ,: Today's rule a'ddresses the following:
(1) EPA's"long-term permitissuanCe ,
strategy for storm water discharges -'..
associated with industrial activity;
(2) Modifications:to 40 CFR 122.44(i)(2)
' addressing minimum.monitoring and
repbrting requirements for NPDES'
permits for storm water discharges '.'--;
assbciated with industrial activity; '-.:
- -(3) Modifications to 40 GFR ^
i'22.28(b)(2) addressing minimum notice ,
of intent requirements for general " .
permits; ; ;
.(4) Modifications to 40 CFR 122.26(e)
to establish, a deadline pf October 1,
1992 for part 2 of group applications for: ",
storm water discharges associated with ':_
uidustriar activity; '-:-. . :
.-' : (5) An amendment to 40 GFR
i22.26(c)(2) to clarify the minimum . ."
number-of facilities in a group tha't must
, submit sampling.infprmation in part 2 ;of
a group application; and . . ,
:; ; (6) Modifications to 40 CFR I22.26(e) V
; tp codify portions of Section 1068 of the
Transpprta£ion Act of 1991. ,
A Long Tei-m Permit Issuance:Strategy
;. Many of the initiaf concerns regai'ding i'-
the NPDES storm'water program.
focussed on adapting the existing
NPDES perinit program to effectively
address the large number-of storm water
discharges assbciated with industrial
activity/Potential issues with :
implementing the NPDES prbgram, for
storm water-discharges associated with
industrial- activity arsCraised not only by,
the number of industrial facilities,, ;
subject to the program, but also :by the
- challenges presented in identifying and
.''assessing appropriate technologies for,
-.preventing arid reducing pollutants in
different classes of storm water and the
differences in, the nature and extent of _
storm water discharges. -'.;' :
.. Based on a consideration of comments
from authorized NPDES States; .
municipalities, industrial facilities and
environmental groups on the permitting
framewbrJC: and permit application
: requirements for storm water discharges,
associated withindustria-1 activity, EPA ".'
has developed a strategy for permitting
' stprm water discharges associated with
industrial activity that will serve as a
foundation for future program"
development and technology transfer. '
The Agency intends to use the flexibility
providediby the CWA 6 in designing a -
workable atid reasonable permitting ",..'.,
'system.' ! .- -'"' .--.. :" -','.-:. ; '..
. ;In an action related to this.
rulemaking, EPA, in conjunction with -
the Rennselaerville Institute, has
initiated a project to develop ;
recbrhmendations for streamlining and
improving the existing permit issuance
and compliance processes for storm
':water discharges. In addition, the
project-will examine whether and how
'the currently unregulated phase II storm r
water discharges should be addressed. :
EPA wiirb.e issuing a Federal Register
notice to announce a series of meetings
that will address these phase II storm:
water discharges, ', " " ,
The strategy in today's action consists
of two major.comporients, a tiered
framework for developing permitting;
priorities and a framework for the
development of State Storm Water . /.
Permitting Plaris. ,:,, : \ : ;
1. Permitting Priorities . " : '
The.Agency believes.that most storm
water .permitting activities ;can be .
describecl in terms of the following .four
classes pf activities:;- ;, , ;""-.'''-
-',' Tier IBaseline Permitting: One or
more general permits will be developed,
initially to cover the majbrity of storm
water discharges,associate.d with.
industrial activity; .
; 6, The Court inNRDCy. Train, 396 F. Supp. 1393 "
(D.D.G."i975) o/jfy, NRDCy.Cosile, 568 F^d 1369 j
(D.tJ. Cir. 1977), has recognized the administrative
burden placed on the Agency by requiring
individual permits for a large number of storm-
water discharges. These courts have affirmed EPA's
discretion to use certain administrative devices,
'such as area permits or general permits to help
manage its workload; In addition, the courts have
recognized flexibility;in the type ofperrnit'
conditions that" are established, including
requirements for best management practiced. See." ,
August 16,19'91 (56 FR 40948) for further discussion '
6f the use of general'permits for storm Water - ' '
discharges;. . ...>;, :.''':'" . /' "'.'- " -* '-"'- ''''''
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13398 Federal Register / Vol. 57, No. 64 / Thursday, April 2. 1992 / Rules and Regulations
» Tier IIWatershed Permitting:
Facilities within watersheds shown to
be adversely impacted by storm water
discharges associated with industrial
activity will be targeted for individual or
watershed-specific general permits:
Tier tilIndustry-Specific
Permitting: Specific industry* categories
will be targeted for individual or
Industry-specific general permits; and
* Tier IVFacility-Specific
Permitting; A variety of factors will be
used to target specific facilities for
Individual permits.
These four classes of activities will be
implemented over lime and will reflect
priorities within given States. In most
States, tier I activities, issuance of
baseline permits, will be the initial
starting point. As priorities and risks
within the State are evaluated, classes
of storm water discharges or individual
atorm water discharges will be
identified for tier II, HI or IV permitting
activities. Usually a storm water
discharge or a class of discharges will
not go through a sequence that involves
all four of the tiers associated with the
strategy, but may for example, go from
Initial coverage under a Tier I baseline
permit to coverage under a tier III
Industry-specific general permit.
a. Tier IBaseline permitting. Tier I
general permits can initially cover the
majority of storm water discharges
associated with industrial activity in a
State. Consolidating many sources
under a general permit greatly reduces
the administrative burden of issuing
permits for storm water discharges
associated with industrial activity.
Under this approach:
Pollution prevention and/or best
management practices will be
established for discharges covered by
the permit;
Facilities whose discharges are
covered by the permit will be certain of
their legal responsibilities and have an
opportunity to comply with the CWA;
» EPA and authorized NPDES States
will begin to collect and review data on
storra water discharges from priority
industries, thereby supporting
subsequent permitting activities;
* The public, including municipal
operators of municipal separate storm
sewers which may receive storm water
discharges associated with industrial
activity, will have the opportunity to
review data and reports developed by
Industrial permittees under section
30«{b)oftheCWA;
* The baseline permits will provide a
basis for coordinating requirements for
storm water discharges associated with
industrial activity with requirements of
municipal storm water management
programs In permits for discharges from
municipal separate storm sewer
systems.
The baseline permits will provide a
basis for bringing selected enforcement
actions; and
The baseline permit, along with the
State storm water permitting plans
(discussed below), will provide aJocus
for public comment on draft permits and
subsequent phases of the permitting
strategy for storm water discharges.
Initially, the coverage of the baseline
permits will be broad. However, it is
anticipated that coverage will become
more specific and targeted as other
permits are issued for, storm water
discharges associated with industrial
activity pursuant to tier II through tier
IV activities. The Agency believes that
tier I permits can establish the
appropriate balance between monitoring
requirements and implementable
controls that will initiate facility-specific
controls and provide sufficient data for
compliance monitoring and future , .
program development. Baseline general
permits are flexible enough to allow the .
inclusion of tier II, III or IV types of
permit conditions, such as industry
specific monitoring or control conditions
into the baseline general permit. :
b. Tier IIWatershed permitting.
Issuing permits on a watershed basis is
potentially a desirable way to cost
effectively use Agency resources to
satisfactorily address risk. Facilities
within watersheds-shown to be
adversely impacted by storm water '
discharges associated with industrial
activity will be targeted for individual
and more specific general permitting
activities. 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 to use
impairment. Information developed
under sections 304(1), 305(b), and 319(a)
of the CWA, along with information
from other sources (including
information developed under the
baseline general permits for storm water
discharges), can be used in evaluating
impacts on receiving waters. This
information may identify classes of
storm water discharges that are of
particular concern and portions of
watersheds where the sources of
concern are located. Appropriate
classes of storm water discharges in
these locations can be targeted for
additional permit conditions which may
provide for additional information to
characterize the discharge (e.g.,
additional monitoring and reporting
requirements) or, where appropriate, for
more stringent controls.
information gathered under initial
permits for storm water discharges as
well as information from other sources
can be used to reassess waterquality-
based controls. As discussed in more
deiail below, State storm water
permitting strategies are expected to
have a major role in this process.
c. Tier HI-Industry-specific
permitting. Specific industry categories
will be targeted for individual or
industry-specific general permits. These
permits will allow permiting authorities
to focus attention and resources on
industry categories of particular concern
and/or industry categories where
, tailored requirements are appropriate.
The Agency will work with the States to
develop model permits for selected
classes of industrial storm water
discharges. In addition, the group
application process adopted in the
November 16,1990 regulation, (55 FR
47990) will provide an additional
mechanism for developing industry-
specific general permits. Group ;
applications that are received can be
used to develop model permits for the
appropriate industries. -.
d. Tier IVFacility-specific ,
permitting, individual permits will be
appropriate for some storm water
discharges in addition to those
identified under tier II and tier HI
activities. Individual permits should be
issued where warranted by the
environmental risks of the discharge, the
need for additional and more complex
individual control mechanisms, a
facility's compliance history or the
potential to consolidate permit
requirements for a particular facility. 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. This
provides an opportunity to develop more
facility specific individual controls
without greatly increasing incremental
administrative burdens.
2. State Storm Water Permitting Plans
EPA believes that State Storm Water
Permitting Plans provide an effective
.basis for ensuring adequate public input,
evaluating program activities and
priorities, and providing program
oversight during the earlier stages of
program development. These plans Will
provide an effective coordination and
tracking mechanism for evaluating the
initial permitting activities for storm
water discharges required under section
402(p) of the CWA. In addition, State
Storm Water Permitting Plans will
provide,a framework within which to
coordinate and asses the relationship
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Federal Register/ Vol.: 57. No. 64 /Thursday, April j 1992 / Rules and Regulations
11399
. and appropriate priorities between
controlling storm water 'discharges
under the NPDES program.with other :
: efforts to address diffuse sources of '-. v
water pollution, such as StatrNonpoirit
Source Control Programs developed '
under section 319 of the CWA.
EPA has .outlined below a number of '.
j:he components and elements of State
Storm;Water Permitting Plans which,it
believes are essential to assure ,
successful implementation of the storm
water initiative called for in section
402(p) of the CWA.'At a minimum, State
Storm Water-'Permitting Plans should
include a description of an oversight
strategy regarding the hnplementatioh of
; JSJPDES permits for discharges from large
and medium municipal separate storm
sewer systems; storm water discharges -
- ^associated with industrial activity; and
case-by-case designations of storlri
water discharges needing a permit,
Plans -should be developed for each '
State by the NPDES authority (e.g. either
an authorized NPDES State, or, where a
State does not have base program
authorization, by EPA). ,, '.
EPA is requesting that, draft State " *
Storm Water Permitting Plans be
provided to the Office of Wastewater
Enforcement and Compliance by April 3,
1995. EPA anticipates that States will
update these; plans on a regular basis. -
These plans wilL assist EPA in
technology transfer activities with other
States, evaluating the progress of States-
in implementing storm water permitting
. activities^ and in identifying both ;
successes and difficulties with ongoing -'--.
; program implementation.The initial
State Storm Water Permitting Plan will
also entail preliminary planning, '
assessment, and tracking that will be
. essential to developing phase II State
Storm Water Management Programs ;
called for under section 402(p) (6) of the ":.
'- CWA.: ' ]':" -'..''-'"-.. ' -':, ~ ,' '.:'
. . The basic framework for the Plan
should include-the following elements
on a State-wide-basis:
Municipal Separate Storm Sewer .'..
Systems' . . .-- , ,;
A list of municipal separate storm
sewer systems serving a population of
100,000 or more within the State;
: » For systems identified, a summary
of the estimated pollutant loadings as
: initially provided in the permit
application for such discharges, and as--
otherwise updated;:
The status of the issuance of
permits for discharges from municipal
separate storm sewer systems serving a
population of 100.000 or more, including
any NPDES permit number for such '
discharges; and
« An oiitline. of the major components
of municipal storm water managemeiit
programs .required under permits for
. discharges from municipal separate
storm sewer systems, including a
detailed description of the '
implementation of any innovative 'or
model municipal program components.
Storm Water Discharges Associated
With Industrial Activity ' ;'"';.-
"- A description of the status of
activities to issue and implement
baseline general permits, including a_
copy of any .final general permit for
storm water discharges associated with
industrial activitiy; ; ''.'''':;.'.."
A* list of categories of industrial "'.
facilities; that have storm:water
discharges associated with industrial '
activity that are being considered for
industry-specific storm water general
permits; -. ';. ,
A description of procedures', :'..
including activities conducted under any
general permit (such as inspections,
. review of notices of intent or review of
'..'- monitoring reports) to identify specific
storm wrater discharges associated with
industrial:activity that are appropriate'
for-individual permits;:
A description of how permits for : .
discharges from municipal separate
, storm sewer systems require the ;
development of muncipal storm water
-. management programs addressing the
;control of pollutants in storm water
discharges associated with industriai
:; activity. /: : ' -'
Impacted'Waters "^ V
A description of procedures to :
; identify receiving waters where , .
discharges from municipal separate
storm sewers, storm water discharges
associated with industrial activity,, or
any other class of storm water
discharges are, or have the potential to,
cause or contribute to a violation" of a
water quality standard, including a list
of waters identified by these procedures.
A plan to evaluate improvements,to
water quality resulting from controlling
;" storm water discharges. -
Case-by-Case Designations, :-
. A description of procedures to ''.
identify storm water; discharges (other
than those currently subject to , ; :
requirements for obtaining a permit) that
contribute to a violation of a water
quality standard or significantly
contribute pollutants to the waters of
the United States. -
A list of storm water discharges
(and associated receiving waters) that
have been designated or are being
considered for designation under section
402(pj(2)(E) of the CWA as needing a
ipermit.'-'..' ,;., -; , ,. , :
EPA strongly encourages public
participation and comment, including
efforts, to coordinate with appropriate
Federal and State land managers, at the
State level during the 'development of
.these plans.
These initial State storm water plan.
components" will assist the
implementatio.n of permitting .efforts for
storm water discharges associated with
industrial activity and other priority
storm water discharges by creating a
framework for planning and prioritizing
State storm water permitting activities,
tracking State permit issuance efforts, -
and providing EPA information for ,-.-.
technology ^transfer purposes among
NPDES permitting authorities and other
State agencies. The State Storm Wafer
Permitting Plans will provide a
framework for implementing the tiered
long-term strategy for permitting storm
-. water discharges associated with
industrial activity, and so noted above,
it will assure preliminary State-wide :.
planning and assessment that will be -
;-. essential to developing phase II State
Storm Water Management Programs
required under section 402(p)(6] of the
CWA. In reviewing State Storm Water
Permitting Plans, EPA will coordinate
: with Federal Agencies that may be
- affected by components of the plans.
3. States vvithout NPDES 'General Permit
Authority , '
''-. As noted, the issuance of general'
permits is an important component in
the recommended permit issuing
strategy. Presently 38 States (and 1 :
territory) have been authorized to
implement the NPDES permit program.
However, only 29 of these States have
beefi-authorized to issue general
permits. If NPDES authority is not
obtained for any of the remaining 10
States, individual NPDES permits based
on the submission-of individual or group
applications will have to be issued for
storm water discharges associated with
industrial activity. It is important to
emphasize that under the CWA, EPA .
cannot issue general permits in States:
that have been authorized to administer
the base NPDES program. :"' '
EPA strongly recommends authorized
NPDES States without general permit
authority to obtain general permit
authority as soon as possible. EPA is
currently working with these States to
provide technical assistance and
support and to expedite the
authorization process.
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11400 Federal Register / Vol. 57, No. 64 / Thursday, April 2, 1992 /Rules and Regulations
4. Response to Comments
a. T/credpriorities. Many commenters
agreed that EPA and authorized NPDES
States should prioritize permit issuance
efforts for storm water discharges
associated with industrial activity, and
Indicated that the tiered priorities
identified by EPA generally establish an
appropriate conceptual framework for
such efforts. These commenters
generally indicated that the four tier
strategy provides appropriate
opportunities to identify high-risk
discharges. In response, the Agency
agrees and is retaining the four tiered
set of priorities as discussed in the
August 10,1991 proposal.
Some commenters indicated that they
thought EPA and authorized NPDES
States should be bound to implementing
the tiered priorities consecutively in the
order reflected by the four tiers. These
commenters indicated that the draft
general permits noticed on August 16,
19»1 by EPA violated the tiered priority
approach because the permits contained
some permit conditions which were
above a tier I baseline set of pollution
prevention measures. EPA disagrees
with these comments. The Agency
wants to clarify that it only intends the
four tiered set of priorities to be used as
a general conceptual framework which
can be used to describe efforts to issue
permits, The strategy for setting storm
Water permit issuance priorities is not
Intended to be a set of regulatory
requirements binding on EPA, States, or
Industrial dischargers. Articulating
tiered priorities docs not legally restrict
conditions in permits issued by EPA or
authorized NPDES States. Rather all
NPDES permits, including permits for
storm water discharges associated with
industrial activity, must be in
compliance with sections 301 and 402 of
the CWA. A major purpose of
articulating tiered priorities is to assist
in identifying and developing
appropriate permit conditions for high-
risk facilities. Tier I baseline general
permits which have some of the
characteristics of tier II or III permits are
consistent with these objectives.
b. Stale Plans. Some States supported
the concept of Plans, but were
concerned that scheduling plan
development one year after the date of
today's rule would hinder the initial
development of storm water programs in
a number of States. These commenters
indicated that the NPDES storm water
program would be in its initial stage of
implementation and authorized NPDES
States would be busy conducting a
number of critical activities such as
obtaining general permit authority.
issuing bosehne general permits, and
issuing permits for discharges from large
and medium municipal separate storm ,
sewer systems. They indicated that .
these activities could be disrupted if
States placed top priority on developing
and submitting plans within a year of
today's action. EPA agrees with these .
concerns, and believes that while -
development of these plans should begin
early in the storm water permit issuance
process to help guide implementation,
draft plans do not need to be prepared
for submission until April 3,1995.
One State stressed that permitting
plans were necessary to assure national
equitability and prevent economic
disincentives in States with progressive
storm water management programs;
EPA believes that one of its goals in.
overseeing the development of the
NPDES program is to ensure that NPDES
permits for storm water discharges
reflect the requirements of the CWA in
an equitable manner that reflects the
technology-based and water quality-
based requirements of the CWA* At the
same time, the Agency recognizes the
need to provide sufficient regulatory '
flexibility to allow States to make'
rational and reasonable permitting
decisions. For example, today's rule
provides permit writers with additional
flexibility, to target high risk discharges
and establish group or facility specific
monitoring and reporting requirements
in NPDES permits for storm water
discharges associated with industrial
activity. In addition, permit conditions
for most classes of storm water
discharges will be established on a
case-by-case basis. Nonetheless, the
Agency agrees with the commehter that
State Storm Water Permitting Plans can
provide an important tool to ensure that
NPDES storm water programs in
different States reflect pollution control
requirements consistent with the CWA
while maintaining the adequate
flexibility necessary to successfully
implement the NPDES storm water
program.
Several authorized NPDES States did
not support the idea of State Storm
Water Permitting Plans, but rather
indicated that annual EPA/State
agreements could be used as a tool, for
oversight of the NPDES storm water
program. In response, the Agency
believes that the approach in the Plans
is consistent with and can be
implemented as a component of annual
EPA/State agreements if there is an
adequate level of detail and specificity
and the State and EPA Region agree on
including the elements noted above as
part of die annual oversight process. The
Agency believes that by publishing a
framework for these Plans, it will
provide States with notice of necessary
Plan elements, provide a nationally
consistent approach for evaluating
program progress, facilitate technology
transfer activities, encourage public
participation, and ensure that risks are
evaluated ion the context of the entire
NPDES storm water program. -
In the August 16,1991 notice, the
Agency requested comments on whether
the guidelines for Plans should be made
requirements that are incorporated into .
EPA regulations, or remain non-binding
recommendations for States. Most of the
commenters that responded to this issue
urged EPA to make the guidelines for
Plans non-binding recommendations for
the States. While EPA notes that it may
require preparation of such Plans
pursuant to Section 402(p)(6) of the
CWA, the Agency agrees with the
commenters that establishing guidelines
for Phase I storm water permitting plans
as non-bin'ding recommendations
provides an amount of flexibility that is
appropriate at this point in the
program's development. Therefore, the
Agency is clarifying that the guidelines
for Phase I Plans and the request to
prepare and submit Plans to EPA are
non-binding recommendations ;at this
point in time.
B. Minimum Monitoring and Reporting
Requirements for Storm Water
Discharges
Current NPDES regulations at 40 CFR
122.44(i)(2) provide that all NPDES
permits are to establish.requirements to
report monitoring results with a
frequency dependent on the nature and
effect of the discharge, but in no case
less than once a year. In the August 16,
1991 proposal, EPA requested comment
on six major options for modifying 40-
CFR 122.44(i)(2) to provide minimum
monitoring and reporting requirements
specifically addressing storm water
discharges associated with industrial
activity. '
In the August 16,1991 proposal, the
Agency identified a number of factors
that it would consider when evaluating
this issue:
Difficulties in Sample Collection
Collection of storm water samples may
pose a number of potential difficulties.
These difficulties include determining
when a discharge will occur, safety
considerations, the potential for a
multiple discharge points at a single
facility, the intermittent nature of the
event, the limited, number of events tha t
occur in some parts of the country, and
variability in flow rates.
Variability of DataThe types and
concentrations of pollutants in storm
water discharges associated with
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federal Register / VoL 57\ No. 64 /: Thursday. April 2, 1992 /Rules and Regulations 11401
.industrialactivity depend on a.number
.of factors, including'the nature of '.
". industrial activities occurring at the site,
the nature of the precipitation event
generating the discharge, and the time
period from the last storm. Variations in
these parameters at a site may result in
: variation from event tp. event in the :
; concentratipns arid types of pollutants
I in a given discharge. "..'"'-:- -*'.'."'
."'. Types of Permit ConditionsPermits
for industrial process discharges and
discharges fromPOtWs traiitipfially
have incorporated numeric and/or :
,.;,tpxicity effluent limitations as , :
V conditions, Monitoring reports for thes^e;.
discharges provide a direct indicatiori .',
-Whether the discharge complies with
permit conditions. However, it is
anticipated that permits for storm water
dischargers will contain a variety of
types of controls. While numeric or
toxicity limitations are expected to be
appropriate for some storm water
discharges, permits for other storm,
water discharges are expected to
; contain'requirements to implement/best
management or pollution prevention
, practices. Iri these cases, discharge ,
sampling information may, not provide ':
as direct a:link to compliance with :
."permit conditions. However,-effluent"""-. ,
monitoring data can still play an
important role in identifying priority
' facilities, providing information on;,
;-sources'arid types; of pollutants which ~
:V can be evaluated when designing or':",
modifying best management or pollution
/prevention practices, rand evaluating-the
effectiveness of best management ,
, practices, and pollution prevention
measures. ''- '-'.. / ' " ',,' ./.'
. Administrative Burdens, on Permitting
AgenciesRequiring each facility that
discharges storm' waterassociated with
' industrial activity to submit monitoring
data at-least annually would result; in a
.significant increase in the number of
discharge monitoring reports received ;
by, EPA Regions and' authorized: NPDES
; States;7 Receiving annual monitoring:,' ,
reports containing complex technical -
^nforrnatipff from each facility with a
storm water discharge associated with,,
industrial-activity would require a :. ."/. ;
significant amount of permitting
resources dedicated to reviewing and
filing these reports. '. ^
7 EPA estimates-thaUf all facilities with storm
.water discharges associated with industrial activity
other than" oil and gas facilities and inactive mining ;
operations were required to submit a discharge ".-"'
: monitoring report annually; almost 15% of all
discharge monitoring-reports collected annually
under the NPDES program would be for .storm water
discharges associated, with industrial activity.
' 'Focused Permitting Efforts ' . :
The long-term permitting strategy' ..-"':
discussed earlier in today's notice ;,'
provides for a"flexible, risk-based
system.for issuing-permits and targetirig
: priority discharges. Flexibility has been
incbrporated iritp the strategy to '"''' '~'.;
facilitate efforts by EPA and authorizep!
-NP1DES States to identify priBfity
discharges an<3 conduct permit issuance
activities whicriT.eflect Regional and ;
State priorities. Discharge sampling data
from targeted facilities can support the
develbpmentofprioritiesandcan.be
. used to assist in assessing the ,
; achievement of water management
goals. As priorities and risks within a .
State arei identified!and evaluated; ' -'
classes :offacilities"will be targeted for
more specific permit issuance activities '
. (tiers U, III arid IV of the strategy). ' /
1. dv,ervi.ew of Proposed Options and ;
-.CommentB'.-'':'":..'" ; , . '
/ '. ' ' . '- -;.. '-' '
: In the August 16,1991 proposal, EPA :
identified six major options .(plus a no
change option) for establishing miniinuin
monitoring requirements in NPDES -
permits for storm water discharges :
.associated with industrial activity. , -
.These options only addressed minimum'
requirements for discharge monitoring in
NPDES permits. All options .retained' ,
authority for NPDES permit-authorities
to require more stringent monitoring';..
requirements where appropriate. The six
options (pms the no.chang^ bption) were
asifbllows:- ;-.- ,- ; ., v;, -
Afo Change Option: Case-by-case !
monitoring conditions1 in permits for ;
storm water discharges," with a minimum
requirement to report monitoring 'results
at least .annually. / v-; , - ':-'.-.:'-.
Option J?/;Case-by-case monitoring J
conditions in permits for storm^ water
.discharges with a minimum requirement
to report monitoring results at'lea^t -.''
twice per permit term".";-' ; "'/_ ':- '-.. "-.
:/Option 2:Case-by-case monitoring :
conditions in permits foj storm water v'
discharges with a "minimum requirement
thiat facilities conduct annual sampling.
Facilities would not be required to : ..'-.
r;eport monitoring information unless the
information .was requested "in a 'permit '',
or by the Director, but wo\ild be r
required to retain information; .... v-
Qpiion 3: Gase-by-case monitoring ;
conditions in^permits for storm water,
discharges with a minimum requirement
that facilities (other than those from oil.
and gas exploration or productipa ' "
operations and inactive mining , ,' ".'-'
operatipns where a past or present mine"
operator cannot be identified) conduct
annual sampling. Facilities would hot be -".'
required to report info.rmtftioh 'linl'esa the
information was requested in a permit .
or by the Director, but would be ,
.required to retain information,. For -
contamiriated'storm water discharges :.
",- from oil and gas exploration or
. production operations pr from inactive,, .
mining operations where a past or .
- present mine operator cannot be :
identified, either case-by-case ' '.*.
monitoring conditions in permits for
stprm water dischargeawith a minimum.
..- requiremeritof annual.sampling (without
reporting) or, instead of sampling, a
Professional Engineer's (PE) certification
: " attesting that good engineering practices
-were being employed to meet
appropriate permit conditions, r
Option 4: Case-by-case mohitoring
conditions in permits;forstorm: water ;";';
discharge's with a minimum requirernerit
: that,monitoring reports be submitted at
least annually for targeted classes of
storm water discharges associated with :
industrial activity located in the
watershed of receiving; waters that are
sensitive to or impacted by ^stOrm water'
:discharges. -.^ :- ,.'. : ;.
, Option 5: Gase-by-case monitoring.
coriditions in permits for storm water.
discharges',with no .minimum; ';.-.
requirement to report monitoring results.
Option .6:. Case-by-case mpnitdfing ;
cbriditions. in permits for stb'rin 'water '.:
diseharge.sywith a minimum requirement'
for the first permit for the discharge that
monitoring results be reported at least
;once;a year. After a facility has ^ =
submitted five years -of data, monitbring
conditions for.storm water would be
.established on a case-by-case basis with
no minimum Requirement to conduct "
annual sampling. , .^
: 'In addition, the Agency indicated that
it would consider developing a finalV
regulation which combined aspects of
several of the articulated options (see
:August 16,1991 (5jB FR 40957)). The
various benefits and concerns with each^.
option were discussed in the August 16,
1991 notice. : J , ' ; ; ' '.'".
The comments received :on the options
reflected differing opinions regarding the
need and use of monitoring in the
,NPDES storin water program. Some of
the cbrhments expressed views on the '
benefits and drawbacks of different-; , :
monitoring strategies in different ;
situations. An underlying theme that -
; emerged from the comments was that a
number of factors, such as the risk to
. water quality that different types and ..,. ,
; classes of storm water discharges
aisspciated with industrial activity
present, the nature of permit conditions
: (e.g. such as numeric limitations and 1, -,.
best management practices), and the .
nature of the operatiori of the facility
shbuldrbe,considered when establishing .
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11402 Federal Register / Vol. 57, No. 64 / Thursday, April 2, 1992 / Rules and Regulations
monitoring conditions in NPDES permits
for storm water discharges.
Other commcnters suggested that EPA
should allow alternatives to monitoring.
Some commcnters urged the Agency to
expand option 3 to allow other classes
of facilities in addition to oil and gas
operations to obtain a PE certification,
to allow facility operators to conduct
inspections, or certify compliance with a
checklist of pollution prevention
measures or best management practices
(IMPs) in lieu of sampling. Other
commcnters suggested that other
individuals were as qualified or more
qualified than PEs to perform site
inspections and that additional
flexibility should be provided with
regard to the inspection requirement.
For example, some commenters
indicated that certified construction
Inspectors were more appropriate for
conducting Inspections at construction
sites than PEs, who might not be
familiar with soil and erosion practices
or storm water management
technologies. Other commenters
gnsted that site personnel would
typically be in the best position to
evaluate the implementation of pollution
prevention measures and BMPs.
Other comments urged EPA to
consider the costs and technical
difficulties qf sample collection and
analysis when establishing minimum
monitoring requirements, and
encouraged the Agency to consider
alternatives to discharge sampling, such
as allowing site inspections in lieu of
monitoring. In the August 16.1991
notice. EPA had requested comments on
monitoring requirements for inactive
mining operations, and some comments
specifically addressed this issue.
& Today's Rule
In response to comments, today's
rulemaking adopts an approach that is a
combination or hybrid of a number of
options identified in the August 16.1991
proposal, particularly options 3 and 5.
The final rule provides for establishing
monitoring conditions in NPDES permits
for storm water discharges associated
with industrial activity on a case-by-
case basis. At a minimum, a permit for
such a discharge must require the
discharger to conduct an annual
inspection of the facility site to identify
areas contributing to a storm water
discharge associated with industrial
activity and evaluate whether measures
to reduce pollutant loadings identified in
8 storm water pollution prevention plan'
arc adequate and properly implemented
in accordance with the terms of the
permit and the plan or whether
additional control measures are needed.
The discharger must be required to
maintain for a period of three years a
record summarizing the results of the
inspection and a certification that the
facility is in compliance with the plan
and the permit, or identifying any
incidents of non-compliance. Such
report and certification must be signed
by a corporate official in accordance
with 40 CFR 122,22.
Today's rule establishes a minimum
requirement for annual inspections for
most storm water discharges associated
with industrial activity..The Agency
believes that a minimum frequency of at
least annual inspections is appropriate
to ensure evaluation of changing
conditions and practices at a site,
(especially those caused by wet weather
and winter conditions occurring
throughout a year) and to ensure
adequate implementation of pollution
prevention measures on a regular basis.
While options of the August 16,1991
proposal had requested comment on a
minimum frequency of every three years
for a PE certification for oil and gas
operations and certain inactive sites, the
Agency believes that providing
additional flexibility in who conducts
site inspections will sufficiently lower
compliance costs in some cases to allow
a higher frequency of inspections to be
feasible. As discussed below, the
Agency is providing additional
flexibility in establishing monitoring or
inspection requirements for storm water
discharges from inactive mining
operations. No commenters on the draft
general permits in the August 16,1991
Federal Register notice specifically
indicated that it would be infeasible to
comply with requirements in the draft
general permits to conduct annual
inspections. The Agency believes that a
minimum annual frequency of
inspections compensates for less formal
requirements with respect to specifying
who must conduct the inspection. A
minimum annual frequency is also
consistent with the minimum
requirements for discharges other than
storm water to report monitoring
information at least annually.
A minimum of an annual inspection or.
report of monitoring results is not
required for storm water discharges
associated with industrial activity from
inactive mining operations where
annual inspections are impracticable.
Rather, permits for storm water
discharges from inactive mining
operations may require certification
once every three years by a Registered
Professional Engineer that the facility is
in compliance with the permit, or
provide for alternative requirements.
This provision will provide additional
flexibility to address inactive mine
operations.- Mining activities ;have a
somewhat unique history Of ' ".
development and inactive mining sites-
can be dispersed diffusely in remote,
hard to reach locations where
employees may typically not be onsite
to conduct site evaluations. In addition,
the inactive nature of these sites may
limit changes to potential for storm
water discharges from the site to
contain pollutants, thereby warranting
less frequent inspections. The Agency
anticipates that certification by
Professional Engineers may often be
appropriate for these sites given the
nature of typical controls for these sites,.
and the. limited amount of activity
.occurring at them. Alternative
requirements may be appropriate for
storm water discharges from inactive
mining operations in some
circumstances. For example, storm
water discharges from inactive mining
operations on Federal lands where an
operator cannot, be identified present
unique circumstances because of the
remote nature and high number of sites
on large Federally owned areas.
The Agency believes that this rule will
provide sufficient flexibility for permit
writers to establish monitoring
requirements that reflect the potential .
risk of the discharge and that are
appropriately related to the nature of the
permit conditions for a discharge.
Today's regulatory modification does
not preclude discharge sampling and
reporting requirements in NPDES
permits for storm water discharges
associated with industrial activity.
While today's rule change provides
additional flexibility to establish
monitoring requirements, it does not
limit the authority of EPA or authorized
NPDES States to establish sampling
requirements where appropriate based
on'a consideration .of risk or other
factors.
The Agency recognizes that different
types of permit conditions are
appropriate for different types of storm
water discharges. Numeric effluent -
limitations are appropriate for some
classes of storm water discharges. End-
of-pipe numeric effluent limitations are
typically used for some types or classes
of storm water discharges associated
with industrial activity.8 Typically,
NPDES permits for these classes of
discharges will contain numeric effluent
limitations, and sampling requirements
will be appropriate for these permits, .
8 For example, the Agency has issued numeric;
effluent limitation guidelines for ten classes of
discharges that are composed entirely of storm.
water or of storm water combined with process
water. . -'-'
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; Register / Vol.; 57.
AprU 2/1992 /
; and Regulations
i!4fl3
: 'H6wever,;formanyother:types'of storm
: water discharges assoeiated with i;
:' /industrial activity, NPDES permits for
. ' ,:. the discharge will require the .{,',.
- implementation of pollution prevention
measures, and/or BMPs. Where permits
require the implementation of pollution
/ "prevention measures and/or BMPs, and
do not establish numeric effluent ^
limitatiqns,,eohducting inspectiohs to
: ^identify sources-of pollution and to
..-. /J evaluate whether the pollution y, .
prevention measures arid/or BMPs ,
' required by th.e pemjifc are being;
. effectively implemented and are in
, compliance with the'terms: of rthe permit
,; may prbvide^better indication than
;. discharge sampling, of Whether a'facility
',;-. is complying With the permit. As a .
result, the Agency believes that tqday's
, rule will also reduce discharge sampling
; ", burdens on some industrial facilities "
-'..': with storm water discharge permits that
require theImplementation of jjollution
prevention measures' arid BMPs rather
; than numeric effluent limitations, while
providing more.effective and efficient.
environmental .benefits.^; ,/!.;;..!; " > :
\ ... Today's rule does not affect the '
manner'inwhich the;NPDES. regulations
: address discharges other than s^brm- > "-..
'':. waterasspgiated with;industrial , '',-.'-
activity. The prbvisioris of 40 CFR -
122.44(i)(2] will cpntinue to require that;
NPDES permits for discharges other- :'_-.
than storm water associated with ,
'-' ""industrial;activity establish / -,; . ....".,
: requirements to report monitpring
', results with a frequency dependent on
-; the nature and effect of the discharge,
'..' but.in no case less than once a year..In
addition, today's rule does not change' -
the'manner in which the NPDES: ;
regulations address storm water
discharges which are subject to an ,;
Affluent limitation'guideline {e.g. a
minimum of annual ntpnitoririg is' still : '
.required for these facilities). : "'-.'.";
.,: 3. Response to Comment ,,> '!''_
. ..Some commenters questioned the _
value of sampling data for storm water
discharges in certain situations. In, V '
response, tne;Agency believes that, in
certain instances,, storm water discharge
monitoring data will play a number of -.
^critical roles in the NPDES program. As
discussed above, some permits/for storm
water discharges associated with
industrial activity will establish :" .
, techriology or water quality-based
numeric limitations. Discharge
riionitpring reports' will be an important
means of assessing compliance wth'
these requirements. DischairgiB "
i:mpnit6rihg,.including mbnitoririg- ' ' ".
.requirements in permits that' do not \ :
establish numeric limitatiohs/plays a
number of other functions in the permit
"' '" '''
Discharge monitoring data; can be ::
-used to^assist in the evaluation of the ;
risk of discharges;by indicating the ! -
types and the concentrations of . "
. pollutant parameters:inthe,discharge.;
Discharge monitoring data can also be
used to support the development -of,
future permit-conditions and controls^.
assist in identifying sources of -
:., pollutants 'at a facility; assist in the: :
evaluation of the effectiveness of . -
.pollution prevention measures and .
; BMPs, and assist in identifying potential
water, quality-based impacts. Storm
water discharge monitoring data will
have an important rple, along with, other
information, in identifying facilities or
. classes of facilities where tier II, III andI"-
IV permit issuance activities are
appropriate. ..";.''; ..--" ;--Vv '' -. .' ..''/
Several commenters offered a number
of suggestions for monitoring programs
for storm water discharges. In response,
EPA; generally recognizes that there .are
a nuiriber of innovative and risk^based
- approaches to developing monitoring :>;
strategies fpr storm water discharges .
associated with industrial activity,-For
example, monitoringjequirements'fbr
storm water discharges associated with
industrial S.ctivity.can be focused on
- those discharges located in watersheds
that are impacted by or sensitive to ,-
storm water discharges as proposed in -.-
-i optibii 4. In'prder^to encourage. States to.
explore efficient, innovative and "cost-
effective monitoring programs, today's
rule provides flexibility to establish /;
different monitoring strategies and does
not adopt option 4,.although the , ..,..-'
minimum requirements adopted today
do not preclude the use of an option 4 -
type approach where appropriate. (The
same is true for options 1, 2, or 6; EPA or
authorized NPDES States retain the-'
flexibility to use these types of ; ; ;.
approaches, on a permit-specific basis);
The Agency believes that this approach
offers the greatest po,tential:for using ;
permits to generate information on "-'.
pribrity storm water discharges that can
be used to,assisUn the development of
controls. }, / ..".- ; .",
Many cpmriienters urged EPA to '
.provide sufficient regulatory flexibility
to permit writers to establish discharge
sampling and reporting requirements for
storm water discharges associated with"
industrial activity on a case-by-case
basis. Many commenters favored \
establishing discharge sampling -:
requirements in a risk-based manner.' A
number of these commenters suggested
that it was important to sample storm .
water discharges associated with ':
industrial Bdtivity frorii priority classes ;
' of facilities, but that actoss-the-board.
- monitoring requirements for all facilities
with storm water discharges associated
with industrial activity may not be an
appropriate of cost-effective use of :"-.- "
resources. A number of justifications
; were:provided for favoring a flexible
; approach including: (1) Regulatory
flexibility cguld allbw establishing ",' ";
; monitoring and reporting requirements
: in-a risk-based manner; (2) some types.
: of facjlities may not be significant'.-'
contributors of pollutants when they.,
' were in compliance with pollution';; -,;':.
; prevention measures or plans; (3) in '-
some situations site inspections would
, be more appropriate than monitoring for
determining permit compliance; (4) EPA
arid authorized NPDES States have
limited ability tp effectively review data;
(5). the potential burdens on small -.,'.
businesses and facilities in arid climates
cpuld be significant; (6) there Would be'
difficulties in characterizirig storm water
.discharges with sampling data; and (7)
EPA needs to focus on storm water : ,
^discharges with the .highest risk. Some '
commenters sunrniarized these concerns
by indicating that they beiieved that for
. some storm water discharges associated
: with industrial activity, overly broad
discharge'monitbring requirements : ;:,-.-
could be" cQunterproductiye toward the:
goals of the program, as significant
resources would have to be expended -. ".
cpllecting and analyzing discharge
sahiples, thereby limiting available; '
", resources^at'some facilities, such as
certain small businesses, to implement ,
'measures that would result iri the.
removal of pollutants in their storm
- v/atet,discharges. Other commenters
raised concerns regarding sampling
storm water discharges from specific
classes of industries. For example,
representatives' of the construction
industry cpntendecLthat monitoring t
storm water from construction sites has
limited usefulness- due to the changing
nature of the activity.; -.
As discussed above, EPA has
designed today's rule to address all "of
.. these concerris. Since today's rule .r
provides additional flexibility in the
NPDES regulatory framework'to
f establish rijoriitpring requirements for
.storm water discharges associated with
industrial activity,'the Agency believes
that the concerns raised by the ' .
coriimenters, where appropriate, can be
addressed duririg the permit issuance
process under the flexible regulatory
framework established by today's rule.
In particular, the Agency believes that -'.-
today's rule, which relies on site
inspections as!minimum requirements,:
provides a more efficient and cost- '
effective approachior evaluating the ''
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11404 Federal Register / Vol. 57. No. 64 / Thursday. April 2, 1992 / Rules and Regulations
effectiveness of permit program
Implementation, The Agency notes that
site inspections arc typically an integral
purl of pollution prevention measures
and best management practices for
storm water discharges associated with
Industrial activity.9
Option 3 of the August 16.1991
proposal would have provided flexibility
when establishing monitoring
requirements for storm water discharges
from oil and gas exploration or
production operations or from inactive
mining operations where a past or
present mine operator cannot be
Identified by allowing either a minimum
requirement of annual sampling (without
reporting) or, instead of sampling,, a
Professional Engineer's (PE) certification
attesting that good engineering practices
were being employed to meet
appropriate permit conditions. The
Agency requested comment on whether
the PE certification was appropriate and
whether it should be extended to other
clfttsei of facilities,
Some commenters suggested that
other individuals were as qualified or
more qualified than PEs to perform site
inspections and that additional
flexibility should be provided with
regard to the inspection requirement.
For example, some commenters
Indicated that certified construction
Inspectors were more appropriate for
conducting inspections at construction
sites than PEs who might not be familiar
with soil and erosion practices or storm
water management technologies. Other
commenters suggested that site
personnel would typically be in the best
position to evaluate the implementation
of pollution prevention measures and
BMPs, In response, today's rule provides
flexibility to allow site inspections to be
conducted by persons other than PEs.
While the Agency believes it is
appropriate to require PE certifications
in certain circumstances, the approach
taken with today's rule will provide
additional flexibility in developing these
requirements,
A number of commenters suggested
that PE certifications were appropriate
* For example, EPA noticed draft general permits
tot »torra water discharges associated with
twluttrkl activity on August 16. 1991 (56 FR 40948}
Ihst would require permittees oilier than
OMUtnictloa cdvillc* to conduct visual Inspections
of dc*lgnftl*d equipment and plant areas for
vWtnc* of, or the potential for, pollutants entering
iht drainage system and to conduct annual site
fttlion* to verify the description of potential
utM'l sourets tnd controls that are being
tawnted In storm Water pollution prevention
Undo? tbt draft general permits, permittees
thiil Oftefttt eontlfueUtra activities are required to
hwpeet kl! erosion controls on the site at least once
every stven calendar days (see part HI.C.5 b (5). 56
for classes of storm water discharges
associated with industrial activity other
than those from oil and gas operations.
These commenters indicated that such a
certification could, in many cases, be
less burdensome than discharge *
monitoring, and that such certifications
could provide a closer link to
compliance with pollution prevention'
measures and best management
practices. As discussed above, today's
rule provides that requirements to
conduct annual site inspections can be
established as minimum monitoring
requirements in permits for storm water
discharges. The Agency agrees with
these comments to the extent that it is
convinced that site inspections can
provide an appropriate means for
evaluating compliance with pollution
prevention measures and best
management practices for storm water
discharges from different types of
facilities. In addition, site inspections
can be less burdensome than sampling
storm water discharges for some
facilities. Requiring annual Inspections
and reviewing documentation as part of,
routine compliance inspections or at the
time of permit reissuance also makes
effective use of the limited resources of
permit issuance authorities, by allowing
permit issuing agencies more time to
focus on issues other than receiving,
reviewing and filing monitoring data.
Some commenters indicated that EPA
and authorized NPDES States should
only require facilities to monitor storm
water discharges associated with
industrial activity where the permit
issuing agencies can evaluate the data.
The Agency recognizes that EPA and
some authorized NPDES States cannot
provide adequate resources to ensure
that all discharge monitoring data can
be inspected. However, the Agency
believes that even where discharge
monitoring data is hot reviewed on an
ongoing basis by a permit issuing
authority, the data can still be very
useful. Facilities which discharge should
review their discharge sampling data to
identify sources and types of pollutants
in discharges, and to evaluate the
effectiveness of pollution prevention
measures and BMPs. Where an NPDES
permit does not require a discharger to
report sampling data, EPA or an
authorized NPDES State will typically
be able to request the data on a case-by-
case basis, or request that the data be
submitted for consideration prior to
permit reissuance.
Some commenters expressed concerns
about minimum monitoring requirements
for storm water discharges from inactive
mining operations. EPA agrees that in
some circumstances, discharge sampling
or annual inspections nfay be
particularly burdensome at inactive
mining operations, because mining
operations often are found in remote
areas that are not necessarily supported
by infrastructure that allows easy
access. In addition, at some inactive
mining operations, inspections may not
be as integrally related to pollution
prevention measures for storm water
discharges associated with industrial
activity, as pollution prevenjjon
measures will not focus on day to day
management activities. EPA has
modified today's rule accordingly.
A number of commenters addressed
the specific monitoring requirements in,
the draft general permits for s'torm water
discharges associated with industrial
activity in the August 16,1991 notice.
The Agency wants to clarify that the
amendments to 40 CFR 122.44(i}(2) in
today's rule establish minimum
monitoring and reporting requirements
for.NPDES permits for storm water'.
discharges, associated with industrial
activity. The Agency,will respond to
comments on the specific monitoring
requirements in the draft general
permits hi the August 16,1991 notice as
part of the fact sheets and/or.
administrative records for those permits.,
C.,Application Requirements for
General Permits ' .
The provisions of 40 CFR 122.21(a)
exclude persons covered by general
permits from requirements to submit
individual permit applications.
Currently, the general permit regulations
at 40 CFR 122.28, however, do not .
address the issue of how a potential
permittee is to apply to be covered
under a general permit. Rather,
conditions for filing an application to be
covered by-a general permit (typically
called a Notice of Intent (NOI)) have
been established on a case-by-case
basis. NOI requirements established in
general permits operate instead of
individual permit application
requirements for the discharges covered
by the general permit.
1. August 16,1991 Proposal
The August 16,1991 notice proposed
several modifications to the NPDES
regulatory framework for general
permits. (The proposed changes
addressed NPDES general permits for all
classes of discharges and sludge
disposal, and was not limited to storm
water discharges). The proposal
addressed procedures for becoming .. '
authorized to discharge under a general
permit, minimum requirements for NOIs
to be covered by a general permit, and
deadlines for submitting NOIs.
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.; 2. Today's Rule
Today's rale finalizes modifications to
the NPDES regulatory framework for
, general permits addressing procedures
for becoming authorized to discharge "
under ah NPDES general permit, v ..-.
minimum requirements for notices of
. .intent (NO!) to be coveredby a general
^permit, and deadlines for submitting ;>
-' NOIs, : ; '!:;:"..." \,;'.';. ;>/' ; ;,"'"
The regulatory framework provided
: by today's rule requires that,-except for
in two situations, an NOI must be '
;submitted by a^discharger (or treatment;
works treating domestic sewage) inr
order to be authorized to discharge (or
in the case of a sludge disposal permit,
to engage in a sludge use or disposal
practice] under an NPDES general r
permit. The first situation where'an NOI
will not have to be submitted to
; authorize discharges un^er a general
permit is w,here the Director notifies the
, discharger that its discharge is covered
v by the permit. The second situation '; "
where NOIs are not. required under a
general permit is where the'Director'
/provides in the general permit that a
submission of an NOI is not requiredi
where the Director finds that ari NOf
requirement is inappropriate for that -
general permit v ".. -.' - " ': T ,
'.; _ In making a~decjsion that an Nbl iff
inappropriate for a general permit, the
Director will consider the type of
discharge, the expected nature of the
discharge, the potential for toxic and
conventional pollutants'in the
discharges, the expectpd,vollume of the
discharges, other means of identifying
.discharges covered by the permit, and
the esumated number of discharges to
be covered by the permit. Also, in
.. making this decision, the Director is
required to describe the reasons for not
requiring an NOIin the fact sheet of the
general permit. Under, today's rule; such
a finding could only be made for
.discharges other than discharges from
POTWs, combined sewer overflows
(CSQs), primary industrial facilities, and
.storm water discharges associated with
industrial activity. The Agency believes
that, given the potential environmental
significance and NPDES-prpgram
priorities associated with discharges
from POTWs, CSOs, primary industrial
iacilihes, and storm water discharges
Associated with industrial activity, it is
appropriate to require NOIs in all
general permits for these discharges ;
Today's rule establishes minimum': '
requirements for NOIs in NPDES general
permits at 40 CFR 122,28(b)(2)(iiJ. This
provision requires that the contents of
the notice ofjnteht be specified in the
general jpermit and shall require :the ?
; submission of information necessary for
adequate program implementation,
including at a mhiimum; the legalname
,. Wd address of the owner or operator,
; the facility name and address, type of ',-.
facility or discharges,.and.the receiving
stream(s); This provision specifies
..minimum NQI requirements. General
: permits may require that additional
information be: reported in NOIs where
appropriate, " -: ; - ; : , ; ..' .',-.. /..
.The NOI provisions of this rule allow
the Director to, establish alternative ;
notice .of intent requu-ements- for general
permitsrfor storm water discharges '
associated with ;indijistrial activity from
.inactive mining, inactive oil and gas
operations, or inactive landfills
; oceiirring on-Federal lands where ah T -
operator cannot be identified. The
Agency is ctuTently'develbping general
permits for storm water discharges from
inactive mines, inactive oil and gas
operations and inactive landfills
occurring on Federal lands. During the
process of developing and issuing these
permits, EPA will work with authorized
NPDES States to determine appropriate
NOI requirements for these permits '
given the. unique nature, distribution,
and occurrence of these discharges. '
Today's rule also provides that
- general permits requirihg,the submittal
of NOIs shall specify .deadlines for !-
submitting notices of intent and the
date(s) when a discharger is authorized
to discharge under the permit.
^ The Agency believes that deadlines
for submittal of an NOI are an important
.part of NOI requirements, and that
general permits should state when NOIs
must be submitted. In addition, the
permit should clarify when a discharge
is authorized under the permit. In many
.cases, the Agency anticipates that .
general permits will ajovide that a
discharger obtains coverage under the
general permit after a "specified time
-period passes after the date of submittal
of an NOI. This approach will provide
the NPDES authority with an - :
opportunity to review the NOI prior to
the authorizatjon of the, discharge. In
.Other situations, it may be appropriate
-for general peiinits to provide that a
discharge is authorized as soon as a
.complete and timely NQI is received. " '.;
The August 16,1991 notice proposed
; in,4Q GFR i2Z28(b)C2)(iii) that unless a
general permit provided alternative time
periods, an NOI was to be submitted 60
days before the date of intended.permit
coverage. The lanal.ruleaihends this
paragraph such that ho default deadline .
for submission is specified. Rather, the
deadline for NOJ submission will be
established on a permit-specific basis^
Today's rule simply requiresi that this
issiiebi .addressed in the,,generalpermit
but leaves the permitting authority this "
decision of which approach is most
appropriate. The approach in the final
rule will avoid the confusion that arose
with the proposed regulatory language
Used.in the August 16,1991 notice.
Today's rule also requires that NPDES
general permits shall specify whether a
; discharger that has submitted a, . ;
complete, and timely notice of intent to
be coveredin accordance With the
general permit and that is eligible for
coverage under the permit, is authorized
to discharge either in accordance with
...the permit upon receipt of the notice of
intent by the Director, after a waiting
period specified in the general permit,
on a date, sjpecified in the general permit,
or upon receipt of notification of '
inclusion by the Director. EPA has
rewritten the proposed lahguage in 40
CFR,122.28(b)(2)(iv) to make this
provision clearer, but has not changed
its intent. The Agency believes that the
approach taken in the final rule retains "
the flexibility of the proposal while
accomplishing the same purpose.
The Agency is finalizing this ;
,'regulatory framework for NOIs with
NPDES general permits to encourage the
use of general permits, to provide for
, more cpnsistent NOI requirements, and
to ensure that dischargers covered by
,; general permits provide appropriate
information. Further, the Agency
believes that today's regulatory , .
framework provides a regulatory
framework that is consistent with
existing practices of EPA and authorized
NPDES States. '
'Si.Response to Comments
Most commenters, addressing the
proposed framework for NOls supported
the concept as a useful tool forthe
NPOES program. Some' of these
commenters urged EPA to use NOIs as a
tool to minimize burdens on the
authority issuing permits and reduce
costs relatiye.to submitting individual
permit applications. Commenters ,
indicated that an additional reason for
using NOIs was to assist in clarifying
whether a facility was covered by a
given general permit
. The Agency agrees with these .
comments. NOIs serve.a number of
functions. NQI requirements in general
permits can establish a clear accounting
of the number of permittees covered by
the'general permit, the nature of
operations at the facility generalUng the .:
discharge, and theu-identity, location
and receiving waters. NOIs nan be used
to develop a data base of facility-
specific information. NQIs can be used
as,a screening tool to ideniify discharges
.where individual permits are :
-------
appropriate. For example, the
Identification of discharges to receiving
waters with impaired water quality can
bo used to target facilities for priority
permitting efforts. Also, the NOI can be
used to identify classes of discharges
appropriate for more specific general
permits covering a more limited set of
discharges. The NOI can provide
Information needed by the Director to
notify dischargers that a more specific
general permit was issued. The NOI also
can identify the permittee to provide a
basis to develop and implement
enforcement and compliance monitoring
strategies and priorities. In addition, the
administrative burdens on the
permitling issuing agency and the costs
to dischargers can be reduced by
replacing more complicated permit
application requirements with simplified
requirements.
One State commented that EPA
should not mandate by regulation the
information required in an NOI, which it '
believed should be left to the State or
EPA Region issuing a general permit. In
response, the Agency believes that
today's regulatory framework provides
sufficient flexibility for developing NOI
requirements, and that the minimum
Information requirements of today's rule
represent essential information
necessary for meeting the program
objectives outlined above. Under
today's rule, the minimum requirements
for NOIs Include the legal name of the
owner or operator and the facility name
and address. EPA believes that this
Information is essential to identify the
location of the facility for compliance
purposes and to provide mailing
addresses necessary to conduct any
correspondence. The minimum NOI
requirements also include a description
of the type of facility or dischargers.
This description is necessary to provide
- information to screen whether the
discharge is eligible for coverage under
the general permit and to allow the
permit writer to begin to identify priority
discharges. Finally, the minimum NOI
requirements include the receiving
siream(s). This information is necessary
to adequately identify the discharges to
Impaired receiving waters where water
quality-based permits are necessary.
Some commenters indicated that they
believed that all discharges should be
required to submit an NOI. Various
reasons were provided to support this
approach. Including that the NPDES
authority needed to know of all facilities
that discharged storm water to a given
water body, and that dischargers should
not be required to comply with a permit
unless they submit a notification. In
response, the Agency believes that most
general permits will require the
submittal of NOI. However, there may
be some situations where it may be
more appropriate to have the Director
notify dischargers that they are covered
by a general permit or that NOI
requirements are otherwise not
appropriate.
For example, issuing a general permit
without NOI requirements may be an
appropriate way for EPA and authorized
NPDES States to minimize
administrative burdens and compliance
costs in permits for small discharges
which have been determined to have '
minimal or no impacts on receiving
waters. Today's regulation provide some
flexibility to address these situations.
In .the August 16,1991 notice, EPA
requested comment on whether it is
appropriate to require NOIs for the large
number of contaminated storm water
discharges associated with industrial
activity from oil and gas exploration and
production operations. Most
commeiiters On this issue indicated that
they thought NOIs should be required in
general permits for storm water
discharges from oil and gas operations.
One State commented that it believed
that it would be inappropriate to
exclude a class of discharges from the '
requirements to submit an NOI unless
there is an alternative method that can
and will be used to track these
discharges. A different commehter
indicated that oil and gas operations
were adequately monitored through the
Spill Prevention Control and
Countermeasure (SPCC) program and
that NOIs for NPDES general permits .
would not be necessary. A number of
the commenters expressed confusion
over the relationship between this
provision and section 402(1)(2) of the
CWA10, and suggested that requiring
10 Section 402(1)(2) of the CWA provides that
NPDES permits shall not be required for 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 operation. EPA published permit
application regulations consistent with section
402(1)(2) on November 18,1990 (55 FR 480030).
These regulations require permit applications for
discharges composed entirely of storm water
associated with industrial activity from oil or gas
exploration, production, processing, or treatment
operations, or transmission facilities only when a
discharge of storm waters results in a discharge of a
reportable quantity for which notification is or was
required pursuant to 40 CFR 117.21,40 CFR 302.6, or
40 CFR 110.6 at anytime since November 16,1987, or
the discharge contributes to a violation of a water
NOIs in NPDES permits for storm water
discharges from oil and gas operations
would minimize this confusion.
After evaluation of the comments,
EPA believes, that except for the
situation of inactive oil and gas
operations on Federal lands discussed
below, it is not appropriate tq exclude
contaminated storm water discharges
associated with industrial activity from
oil and gas exploration and production
operations from the minimum NOI
requirements, and therefore today's rule
does not treat storm water discharges
associated with industrial activity from
oil and gas operations differently than
other storm water discharges associated
with industrial activity in this regard. As
a result, today's rule does not contain a
specific reference to storm water
discharges from oil and gas operations.
The Agency believes that NOI
requirements in general permits for
storm water discharges from oil and gas
operation will provide for a clear
tracking mechanism that is currently
unavailable under the SPCC program ".
In addition, as was pointed out by
commenters, the NOI process can be
used to identify facilities with
contaminated runoff, and therefore
minimize confusion with respect to the
provisions of section 402(1) [2) of the
CWA. "..-.-
One commenter requested
clarification on the procedures-that
would be followed to ensure that
permits requiring Director notification
instead of facility submission of an NOI
are in compliance with the procedural
requirements of the CWA and the
NPDES regulations, The Agency does
not believe that today's rule conflicts
'with the NPDES regulations or the
CWA. The Agency believes that the
existing NPDES regulations provide for
adequate public notice and public-
comment opportunities when general
permits are issued. (See 40 CFR 124.10,
quality standard, (see 40 CFR 122.26(c)(l)(iii)).
Permit applications are not required for a discharge
composed entirely of storm water from a mining
operation unless the discharge comes into contact
with any overburden, raw material, intermediate
products, finished product, byproduct, or waste
products located on the site of such operations..
".EPA requested comment on using information
, collected under the SPCC program to track storm
water, discharges. However, this approach has a
number of limitations, including that the SPCC
program currently does not require facilities subject
to SPCC requirements to submit notifications. In
addition, many facilities subject to the SPCC
program are not subject to the NPDES storm water
program either because they do not have a storm
water discharge to waters of the United States or <
because they are not activities (hat are addressed, .
by the regulatory definition of storm w£ter
' discharge associated with industrial activity at 40
CFR 122.26(b)(14) (e.g., certain pipelines).
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124.11, and 124.57.) The Agency wants to
point out that the NPDES regulations
require certain opportunities for the
public to .comment during the permit
issuance process, and provide for permit
appeal after the permit is issued. In
addition, 40'CFR 122.28(b)(2)(iii)
provides that for EPA issued permits,
any owner or operator authorized by a
general permit may request to be
excluded from the coverage of the
_ general permit by applying for an
individual permit
One commenter requested
clarification on the type of notification
that must be provided by the Director to
a discharger where the discharger is not
required to submit an NOI. In response,
the Agency believes that in most cases, '
the Director will notify dischargers of
coverage in writing. -
One-commenter requested
clarification on whether a discharger
that is not required to submit an NOI,
but rather is notified by a Director, will .
be subject to permit fees. The Agency
wants to clarify that this rulemaking
does not address permit fees.
One commenter, while supporting the
requirement that an NOI be submitted,
indicated that EPA could reduce its
paperwork load by issuing general
permits for storm water discharges from
construction sites that required
dischargers to notify municipalities
instead of the NPDES permit authority.
EPA disagrees with this approach.
Submitting NOIs to municipalities but
not requiring that an NOI be submitted
to the Director may not assure that EPA
or authorized NPDES States receive
adequate information to effectively
implement the NPDES program for these
discharges.
In the August 16,1991 notice, EPA
proposed that general permits for storm
water discharges associated with
industrial activity from inactive mining,
inactive oil and gas operations occurring
on Federal lands where an operator
cannot be identified may contain
alternative notice of intent
requirements. A federal land
management agency commented that
inactive landfills on Federal lands are in
some ways analogous to inactive mines
and inactive oil and gas operations and
should be treated similarly ."EPA agrees
with this comment and accordingly
today's rule allows alternative notice of
intent requirements in general permits
for storm water discharges associated'
with industrial activity from inactive
landfills pn Federal lands.
One State urged EPA not to refer to
NOIs as permit applications. They were
concerned that calling NOIs permit
applications would trigger certain public
notice requirements under-State law.
They further argued that the purpose of
NOIs are significantly different than
permit applications, and that the cited
State law provision should not apply". In
response, EPA recognizes the
differences between the purpose of a
notice of intent and an individual permit
application. Individual permit -
applications contain a significant
amount of site-specific information that
is typically used for the development of
individual permit conditions. NOIs
typically contain only general
information and are used for screening
and compliance purposes rather than for
the development of permit conditions.
However, the distinction between
individual applications and NOIs as
they relate to public notice requirements
in various State laws is a question of
interpretation of those State laws which
EPA does not attempt to answer in this
notice. EPA notes however, that it
considers submission of an NOI to
constitute a permit application for
purposes of federal regulatory
provisions which provide that a timely
reapplication of a federal permit or
license continues the effectiveness of
the existing permit pending action by
the Director. (See 40 CFR 122.6).
In the preamble to the August 16,1991
notice, EPA discussed public
accessibility to lists of NOIs, but did not
publish proposed regulatory language
addressing this issue. EPA does not
intend to address this issue in this
rulemaking, but will be addressing the
issue in future rulemakings.
D. Deadline for Part 2 of'Group,
Applications.
1. November 5,1991 Proposal
On November 5,1991, (56 FR 56555), '
EPA requested comments on extending
the deadline for submitting part 2 of the
group application from May 18,1992 to
October 1,1992. In the November 5,1991
notice, the Agency indicated that this
extension would provide an appropriate
opportunity to conduct sampling to
support the Part 2 application and would
allow for permit issuing agencies to
issue general permits.
application. This regulatory modification
will provfde a more equitable
framework for submitting permit
applications for storm water discharges
associated with' industrial activity. It
will also allow for permit issuing
agencies to issue general permits prior
to the completion of the group
application process.
3". Response to Comments
2. Today's Rule
EPA received over 60 comments on
the November 5,1991 proposal. After
careful consideration of these
comments, the Agency, is extending the
deadline for submitting part 2 of the
group applications for storm water
discharges associated with industrial
activity from May 18,1992 to October 1.
1992 as proposed.
EPA is granting this extension to
provide an appropriate opportunity to
conduct sampling to support the part 2
All of the comments received on the
November 5,1991 proposal to extend the
regulatory deadline for submitting part 2
of the group application supported an
extension. A number of reasons were
provided to justify the extension,
including the difficulty associated with
sampling storm water discharges from
facilities located in arid and northern
regions during winter months, the need
for time to allow for the preparation of
guidance documents, training personnel
in sampling techniques, and conducting
analytical work. A number of
commenters supported October 1,1992
as the deadline for part 2 of the group
application. In general, these
commenters expressed their belief that
the deadlines for submitting part 2 of the
group application and individual permit
applications for storm water discharges
associated with industrial activity
should be the same. A number of
reasons were given for supporting this
approach, including,.that this would be
the most equitable approach, the
regulated community would have a
clearer choice of application options, ,
and one deadline would limit confusion.
EPA agrees with these concerns, and as
is discussed above, is extending the
deadline for submitting part 2 of the
group application from May 18,1992 to
October 1,1992.
Some commenters favored extending
the deadline for submitting part 2 of the
group application beyond October 1,
1992. Some of these commenters
suggested that part 2 of the group
application should not be required until
general permits for storm water
discharges associated with industrial
activity were issued. These commenters
indicated that this approach would
ensure that dischargers would have
three options for applying for a permit,
(e,g. participating in a group application,
submitting an individual application, or
submitting an NOI to be covered under a
.general permit). This would allow
dischargers to selectthe most cost-
effective approach allowable under the
NPDES regulatory framework. Other
commenters suggested that participants
in a group should be given one complete
year from the date gfter the group
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11408
Federal Register /Vol. 57. No. 64 / Thursday/April 2. 1992 / Rules and Regulations
receives notice of approval of the part 1
application.
EPA notes that the extension to
October 1,1992 provides authorized
NPDES States with additional time to
issue general permits for storm water
discharges associated with industrial
activity. On August 16,1991, (56 FR
40948), EPA published a proposal
requesting public comment on draft
general permits for storm water
discharges associated with industrial
activity in States and territories without
authorized NPDES programs.12 The
Agency intends to make every effort to
iasuo these general permits in the spring
of 1992.
However, EPA has decided against
basing the deadline for submitting part 2
of the group applications on the date
that general permits are issued by
individual States because of the
potential confusion and uncertainty that
would arise. Although the Agency
proposed draft general permits for storm
water discharges in States without
authorised State NPDES programs in
one notice, it may not finalize all of
these permits on the same date. The
Agency expects that various region-
specific. State-specific, or industrial
category-specific issues may take
different amounts of time to address. It
should also be noted that the August 16,
1991 proposal does not address general
permits In authorized NPDES States.
Each authorized NPDES State that will
issue general permits for storm water
discharges associated with industrial .
activity will have to go through the
procedures for issuing general permits of
that Stale. Different permit issuance
procedures, along with other factors,
will result in these permits being issued
at different times. All of these factors
Indicate that a tremendous amount of
uncertainty and confusion would result
if EPA attempted to tie regulatory
deadlines for submitting permit
applications to the dates when general
permits are issued for particular States.
This is particularly important to the
group application process where
facilities from many different States
may be in the same group.
In addition, the Agency anticipates
that there will be situations where the.
permitting authority determines that
" The notice addreiics draft general permits in
M SUtal (MA, MB. NH. PL. LA. TX, OK. NM. SD,
AZ, AK, ID). and alx Territories (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) without authorized NPDES
Stale prearwns: on Indian lands In AL, CA, GA, KY,
Ml, MN, MS. MT, NC. ND, NY, NV. SC, TN, UT, Wl.
and WY: touted within federal facilities and Indian
l«ndt In CO »nd WA: and located within federal
hciUtlei in Delaware.
general permits are inappropriate for a
given class of storm water discharges.
Additional confusion would arise in
these situations if application deadlines
were tied to the dates of general permit
issuance. The Agency is also concerned
that unacceptable delays may result
under this approach in States where the
issuance of a general permit is delayed.
EPA also disagrees with the
suggestion that the deadlines for
submitting part 2 of the application
should be based on the date on which a
part \ application is accepted. EPA
believes that establishing a fixed
deadline of October 1,1992 for part 2. of
the group application is warranted for
the same reasons that the Agency
articulated above and in the proposal.
This approach provides an equitable
deadline for these facilities, reduces
confusion and uncertainty in the
regulated community, and provides
sufficient time to complete the sampling
necessary to obtain quantitative data.
E. Clarification for Part 2 of Group
Applications
The November 16,1990 regulations
established procedures for group
applications for storm water discharges
associated with industrial activity. The
group application process allows for
facilities'with similar storm water
discharges to file a single two part
permit application. Part 1 of a group
application includes a list of the
facilities applying, a narrative
description summarizing the industrial
activities of participants of the group, a
list of significant materials exposed to
precipitation that are stored by
participants and material management
practices employed to diminish-contact
of these materials by precipitation (see
40 CFR 122.26(c)(2)(i)). In addition, the
part 1 application must identify the
group participants that will submit
quantitative data (sampling data) in part
2 of the group application. These
participants must be representative of
the group.
In part 2 of the group application, the
subset of facilities identified in the Part
1 application must submit quantitative
data. The provisions of 40 CFR-
122.26(c)(2)(ii) establish a minimum
criteria for identifying facilities^from
which sampling data must be submitted.
EPA had proposed that, in general,
groups submit data from at least 10
percent of the facilities in the group,
with a minimum of 10 facilities
submitting data (December 7,1988 (53
FR 49435)). In the final rule, EPA
allowed groups of 4 to 10 members to
apply if 50 percent of the facilities
submitted data (November 16,1990 (55
FR 48067)). " - .
During the grpup application process,
the regulated community exhibited some
confusion regarding the minimum
number of facilities that must submit
sampling data for groups with 11 to 99
members. For groups with 11 to 99
members, some groups have interpreted
the language in the November 16,1990
regulations to require 10 percent of the
facilities to submit sampling data, while ,
other groups have interpreted the
language to require a minimum of 10
facilities to submit sampling data.
In today's action, EPA wants to clarify
that for groups with 20 or fewer
members, at least 50 percent of the
dischargers participating in the group
must submit quantitative data. For
example, at least nine facilities must
submit quantitative data if a group is
composed of 17 members. For groups
with 21 to 99 members, at least 10
dischargers participating in the group
must submit quantitative data. For
example, at least ten facilities must
submit quantitative data if a group is
composed of 25 members. For groups
with 100 to 1,000 members, at least 10
percent of the dischargers participating
in the group must submit quantitative
data. For groups with more than 1,000
members, no more than 100' dischargers
participating in the group must submit ,
quantitative data. .
For groups with more than 10
members, either a minimum of two
dischargers from each precipitation zone
indicated in appendix E of 40 CFR part
122 in which ten or more members of the
group are located, or one discharger
from each precipitation zone indicated
in appendix E of 40 CFR part 122 in
which nine or fewer members of the
group are located, must be identified to
submit quantitative data. For groups of 4
to 10 members, at least one facility in
each precipitation zone in which
members of the group are located must
submit data. EPA has made a correction
to the group application requirements to
reflect the above, which represents
EPA's original intent in the November
16,1990 rule. _"'.
F. Transportation Act Deadlines
Section 1068 of the Transportation Act
addresses permit application deadlines
for storm water discharges associated
with industrial activity that are owned
or operated by municipalities. Today's
rule codifies three changes to existing
regulatory deadlines to reflect the new
provisions of section 1068. The first two
modifications address individual
application deadlines, and the third
addresses group application deadlines.
-------
, : The deadlines for submitting ; -
: Sndividual:permit applications for storm
water" discharges Associated with
industrial activity that are owned or
-operated by municipalities are" -> -: ,
consistent with::the October 1,1992V
regulatory deadline that EPA -
established on November 5,1991 {58 FR
56548) vyrith two exceptions: ; -'. "...
_, (1) Municipal facilities that have been
identified in a part 1 group application
that has been submitted in a timely '"'
manner where either the group
application is denied or the particular
, facility is rejected from the group, are
not required to submit an individual
application until the 180th day following
toe date on which the denial or rejection
is made; and:'-' '.-,.' '-.
(2) Facilities owned or operated by a
Municipality witH a population of lesa '.
than 100,000 ether than an airport- ' "
P^rplant, or uncontrolled sanitary
landtill are not re.quired to submit a;:
permit .application at this time unless a
p^mi,t.'?5f?uir(?4 under either section '
402(p)(2) (A) or (E). of the CWA. '
;.?-. .With regard tb.facilities thaltiare either
part of a groupffiathas been:deniedi0r: l
which are individually rejected! from a
&°% today's rule codifies^ alternative '
deadlines forstornvwater discharges i
" associated wifiviridustriar activity frohi
facilities thatare owned or operated by
a mumpipahty and that are rejected as
members of a part 1 group application. *
Such dischargers shall submit an '
individual .application no later thaniSO
days after the date of receipt of the
notice of rejection oHJctoberi, 1992, "
... whichever is later, .
-.;.. Withrespecttafaciilities owned OT -
. operated by municipalities with a ' ^
population 6f 100,000 or less, EPA "
believes- that Congress intended this
language to place all of their storm' -'-' ;
: water discharges (except for those from
airports, powerplants and luiconh-biled
.sanitary landfillsj'irito Phase E of the
storm water program. v -> *"-'' -"-:
Today's rule also codifies the: '"':-
Transportation Act's alternative
deadlines for,group applications for
storm water discharges associated with
industrial activities that are owned or
operated by municipalities with a
population of less than 250,000
5£8n?S? ^ neW provisions of Section
1068 of the Transportation Act, the
group-application deadlines for these
facilities are now May 18,1992 for part 1
EPA also wants to clarify that the
Transportation Act did not affect any of
the regulatory application deadlines fot
storm water discharges associated with
industrial activity from facilities that are
either not owned or operated by a
municipality or that are owned or
operated by a municipality with a
Copulation of 250,000 or more. The
legislative In'stOry for the Transportation
Act clarified thart "nothing in the
r conference report affects most of the ;
dates for submitting stormwater permit '
apphcatibnaestablished m^EPAts recent1
.rulemakmg published in the Federal ; ^
Register on November 5,1991. * * * The
.conference report, while silent on the
deadlines for these privately owned
industries, is not intended to override
.the dates established in EPA's ;
H11509 (daily ed. November 26,1991)
Rep. yammerschmidt). Thus, the permit
application deadlines for storm water
discharges associated with.industrial
, activity from-privately owned and
'.operated facilities, including those that
discharge through a municipal separate
:stOrm sewer to waters of the United
States, are not changed by today's rule
with the exception of the part 2 ;
application deadlines discussed
elsewhete in today's noticec Also, where
a facility is pHvately owned and
_ operate^, but has a service contract
with, a municipality, tljejKcjlity is not
considered to be "municipally
operated". For example, a privately :
owned and operated landfill that
receives municipal waste pursuant to a
.contract with a municipality or some ' =: '
other form, of,reimbursement"from a
.municipality can not avail itsetf of th^
application deadline extensions in the
Transportation Act, which apply only to
racihties owned or operated by
municipal governments. : . .
., As outlined above, section 1060 of the
IransportatioriAct contains special '
provisions for municipalities'with a ;
;po^fetion,pf less than 100,000. Section :
-^068(c) of the IS-ansportationAct '
.defmes;two classes of industrial -
tacihties that are owned or operated by
municipalities with a population of less .
than: 100,000. The first group of facilities
is comprised'oi airports, powerplants,
and uncontrolled sanitary landfills that
-are owned or operated by a municipality
with a population of less than 100,000. It
is clear that Congress did not intend in
section I068fc) to change the existing
individual application deadlines for
these discharges. Group application
requirements for storm water discharges
associated with industrial activity from
InRnfM80^!!88 are addressed by section
1068(b) of the Transportation Bill. As
discussed above, the group application
deadlines for these facilities are May 18,
1992 for Part 1 applicaitons and May 17
£1for Part-2 applications".
The second group is comprised of
facilities with storm water discharges
associated with industrial activity other
. than airports, powerplants or
uncontrolled: sanitary landfills that are
,owned,or operated by municipalities
with a population:of lessjthan 100,000
Section 1068(c) pro.vides that EPA shall
not require this second group of
.industrial facilities to apply for or,obtain
a permit before October 1,1992,-unless a
permit is required under either-section
402(p)(2) (A)or(E)of theCWA. T
_ With respect to this second group of
tacilities, today's rule reserves the
regulatory deadlines for storm water
applications. The Agency intends to
address these facUities in a manner that
is similar to other storm water
discharges addressed by section
402(p)(l) or the CWA.« Currently, the -
Agency intends ;to evaluate storm water
discharges associated withT industrial
activity that are owned or operated by a
municipality with a population of less
than 100,000 (except for those from
powerplants, uncontrolled:sanitary
landfills and airports) along with other
storm,water discharges addressed by '
section 402(p)(l)'iij;two' studies req'uired
under sectiori402(p)(5) of the CWA.
These studies-willbe used to support "
the development of regulations under
section 402(p)(6)." it is clear from the
legislative history of the Transportation
Act that Congress intended to address
these discharges in this manner, i.e., as
discharges subject to the permit '
moratorium of section 402(p)(i) Of the
CWA. "EPA defined industrial activity v
in^such a Way as to require many cities
with a population under 100,000. to make
application for stormwater pnhits,
notwithstanding the moratorium on
: permit requirements'that the Congress
thought it was puling in place * * *This
legislation will clarify that small cities
need not apply for permits associated
with some of the industrial faGilities'
they own or operate until October 1
1992, [the] date for the general
moratorium'on their permit
: requirements." (Vol. 137 Cong. Rec.
S18596 (daily ed. November 27,1991),
Sen. Chafee). "{Municipalities with
populations of less than 100,000 would
13 Section 402(p)fl) of the CWA creates a
moratorium on issuing NPDES perm.ts until October
1.1992 for storm water discharges that are not
identified in section 402(p)(2) of the CWA.
14 Section 402(p){6) of the CWA requires EPA in
consultation with State and local officiaU. is
required to issue regulations by no later than
October 1 1992. which designate addiUonal storm
water discharges to be regulated to protect Water
quality and estabhsh a comprehensive program to
regulate such designated sources. This program
must establish, at a minimum, [A) priorities. (B)
requirements for State Storm Water Management
Programs, and (CJ expeditious deadlines. The
program may include performance standards
guidelines, guidance, and management practices
and treatment requirements as appropriate -
-------
11410 Federal Register / Vol. 57. No. 64 / Thursday. April 2. 1992 /-Rules and Regulations
not be required to apply for permits for
stormwater discharges associated with
Industrial activities except for power
plants, uncontrolled sanitary landfills,
and airports." (Vol. 137 Cong. Rec.
H11509 (daily ed. November 26,1991),
Rep. Hammerschmidt).
1. Determining the Population of
Municipalities
The Transportation Act establishes
phased requirements for NPDES permits
for storm water discharges associated
with industrial activity from facilities
that are owned or operated by
municipalities with specified
populations. However, the
Transportation Act uses a different
classification scheme than is used in
section 402(p) of the CWA to define
classes of municipal separate storm
sewer systems. Under section 402(p) of
the CWA, municipal separate storm
sewer systems are classified on the
basis of population served by the
system. Under the Transportation Act,
the population used for classifying
industrial operations owned or operated
by municipalities is the population of the
municipality. This distinction is
important because a number of
municipal entities with a population of
100,000 or more are not addressed by the
regulatory definitions of large and
medium municipal separate storm sewer
systems.
40 CFR 122.26(b)(4) and (7) specifically
Identify 173 cities and 47 counties as
having large or medium municipal
separate storm sewer systems (e.g.
systems serving a population of 100,000
or more).18 While these definitions
identify all incorporated cities with a
population of 100,000 or more, they only
specifically identify 47 of the 447
counties with a population of 100,000 or
more based on the 1990 Census.16 In
addition, other types of municipal
entities which may own or operate
storm water discharges associated with
industrial activity are not specifically
addressed by the regulatory definition of
large and medium municipal separate
storm sewer systems. Examples include;
sanitary sewer districts, flood control
districts, and unincorporated towns and
townships.
In providing phased requirements for
different storm water discharges
associated with industrial activity that
are owned or operated by
municipalities, EPA believes that a
primary concern of Congress was the
economic burdens placed on
municipalities with a smaller population
base over which to spread costs. In
general, when determining the
population of a municipal entity, EPA
will look at the general population or
service population of Ihe municipal
entity. ' .
For the purpose of today's rule, the .
1990 Census will be used to determine
the population of counties. Service
populations will be used to determine
the population of sewage treatment
districts which operate publicly owned
treatment works (POTWs). Where one
sewer district operates a number of
plants, the entire service population of
the district will be used to determine the
applicable population classification of
'all of the treatment works operated by
the district.17 Populations within service
districts will be used to determine the
populations of flood control districts and
other municipal entities with service .
populations. The State population will
be used to determine the population of
State DOTs.l B Where an industrial
facility is owned or operated by more
than one municipality, then EPA intends
to use the combined populations of the
appropriate municipalities in
determining population thresholds.
EPA believes that the distinction
between the population of a ,
municipality and the population served
by a municipal separate storm sewer
system is appropriate and was intended
by Congress. In the November 16,1990
rulemaking, EPA noted inter-jurisdiction
complexities associated with municipal
governments developing controls for
storm water into such large and medium
systems played a role in defining the
regulatory terms large and medium
municipal separate storm sewer
systems. However, such concerns do not
appear to be as evident with industrial
facilities that are owned or operated by
municipal entities.
« See »ppon
-------
Fedtel Renter / Vol.:
Anril ,
; effeqtiye datefor these requirements"are'
October 9,1993. ; ; /,
Operators of landfills that are owned
or operated by ^municipality with a "
,. pppulatipnof.legs thanHoo.OOO with a'
storm wa.ter discharge asspciated With
industrial activity 2° that are - v
; 'uncontrplled:imust submit an NPDES
.permit application for their discharge, or,
obtaincoverage under an,appropriate
general permit,. . :; : -; > r
. EPA remains concerned about the
risks to.surface water quality posed bv
landfills;" The Agency wants to clarify
that storni water discharges from
..landfills that are owned or operated bv
a municipality with a population of less
than 100,000 can still be required to
obtain an NPDES permit even where
they are in compliance with subtitle D
requirements where they are designated
under section 402(p)(2):(E) of the CWA '
as needing an NPDES permit because
they are significant contributors of '
pollutants to waters of the United States'
or they contribute to a violation of a
water quality standard; '
III.,Ec6nbihic Impact
-_ f,pA has prepared" an
.Collection Request (ICR) lot.epumos
ol estimating the information collection
, burden imposed on Federal, State and
local governments and industry by
today s revisions to 'requirements to
submit annual monitoring reports
minimum notice of intent [NOI1
requirements for NPDES general v t :
Part 257 address.
s except those covered jby the revised
critena m:part 258; which address municipal :
landfills which receive household hazardous Wastes
or hazardous wastes frori, small quantity ^'?
generators By contrast the NPDES regulatory
defmiUon of "storm water discharge associated
with industrial actiyity-.addresses-landfiHsthat
rece,ve or have Deceived any industrial Wastes
cu fr , vith the implementation of subtitle ^
requirements {see October 9,1991 {58 m:SOgaiti. \; '.
permitSi and forStates to subniit^State
, Storm Water Permitting Plans. '
;EPA estimates that'the total annual :
cost of cpinplying with the revised
;monitpring reporting requiremeiits for'
storm water discharges is $1^756,146. '
The Agency estiinafes that today's rule
results in a annual reduction in costs to'
the regulated community of $8,973,526!
over the prior regulatp.ry requirement.:
; EPA estimates that ;the annual costs of
Complying with NO! submissions-
required by NPDES permits to be
$282,348. However,^ EPA believes that
today's 'rule will not increase the
; existing burdens of complying with NOI
''...-..requirements:-' " . . : -
.: EPA estimates that the annual costs to
State governments and EPA of :
reviewing mohitoring.reports for storm
.water discharges is $136,156. The:
Agency estimates that:the annual costs
; to States and EPA of reviewing NOIs is
$210,919; However, EPA believes that :
today's rule will not increase the
existing burdens of reviewing NOIs;
EPA estimates the total annual costs of.
/ preparing :and reviewing Statei Storm
Water Permitting _Plans_iO'$351;i846, ;,..;.
IV. Executive Order 32291 ; -"'....
: Executive drder 12291 requires EPA
and other agencies to perform regulatory
analyses of major regulations. Major
regulations are those which impose a
cost on the economy of $100 million or
more annually or have certain other
ecpnomic impacts. Today's regulatory
amendments generally make the NPDES
permit applications 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 suqh, do not constitute a major rule
"^«S ^eSulation was submitted to-the '
Office of Management and Budget
(OMB) for review. :-:,.;; ..." ;
Y- I'aperwoiic Reduc^ipn Act
. Thejnformatiori requirements in this
-rule^have been approved by the Office
ol Manajgement and Budget (OMB)
under provisions, of the Paperwork
Reduction Act, 44.U.S.G. 3501etseq. and
nave been assigned, OMB Control"'.-
number 2040-O004.".... - ' : 1
.Public reporting burden for this .
collection of inform.ation is estimated to
average 17.46 hours'per response/an '
increase of ;.5Q hours. This ihciudes^
time for reviewing instructions,
searching existing data Sources; yi
.gathering the^data needed, and "
completing and reviewing the collection
ot informatioh. The 17,46 figure is an
average for all dischargers Tinder the
NPDES program; including POTvVs
Regulations 11411
industrial process, and stormwater
qischargers,.;For storm wajer
:.; Dischargers, the average^burden per
response will Decrease by! 3.8 hours per
:repondent.:; ...''--- ;>' 1 ;; .'-,-
V. Send.qomments regarding the burden
estimate or any other aspect of this
collection of information, including
suggestions for reducing this burden, to
Chief, Information Policy Branch, PM- '
:, 223Y, U.S. Environmental Protection'
Agency, 401 M Street.SW,, Washington
DC;20460; and to the Office of
Information and Regulatory Affairs,
Office of Management and Budget,'
Washington, DC 20503, marked , "
."Attention: Desk Officer;for EPA."
: VI. Regulatory Flexibility^ Act
,r ^nder ^e Regulatory Flexibility .Act, 5
U.S.C 601 et sag,, EPA is required to -
prepare a Regulatory Flexibility
Analysis to .assess ihe,impact of rules on
small entities. No Regulatory Flexibility
AnalysisJs 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. :>.. --f- .;/; ' -" .>...::- :;.;,..-'-' ."'
Today's ariiendments to the
regulations would generally make the
JVPDES regulations more flexible and
less burdensorne for permittees.
Accordingly, I hereby certify, pursuant
to 5 U.S.C. 605(b), that these ..
amendments will not .have a significant
impact on a substantial number of small
entities. .'. ; '.'-"- -.'- :.'. :.. '
VII. APA Requirements
, The amendments to permit ';''-'
. application deadlines1-for storm water
discharges .associated withiihdustrial
activity from facilities owned or ,
operated by municipalities are being
adopted without notice and comment
.-As they merely codify the provisions of
; section i068 of the intermodal Surface
Transportation Efficiency Act of 1991, * '
they constitute interpretive rules for
which notice and comment is not '
required. :EPA requested comment on
the issue of the minimum number of
facilities that must submit sampling data
in a group application in a December 7
1988 notice (53 FR 49416). Additional
notice and comment is. not required for
the clarification to the group application
regulations made in today's rule because
the Agency has already taken comments
on this issue.and today's action only
clarifies the approach that was intended
by the November I6i 1990 rule.
^ist of Subjects ;iniO CFR Part 122
Administrative practice and
procedure,:Environmentarprotec:tion,
Reporting arid record keeping
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11412 Federal Register / Vol. 57, No. 64 / Thursday. April 2, 1992 / Rules an.d Regulations
requirements, Water pollution control,
General permits. Storm water.
Authority: Clean Water Act, 33 U.S.C. 1251
at seg.
Oiled; March 23,1992.
William K.RdIly,
Admlnistfator,
For the reasons stated in the
preamble, title 40 of the Code of
Regulations is amended as follows:
PART 122EPA ADMINISTERED
PERMIT PROGRAMS; THE NATIONAL *
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
1. The authority citation for part 122
continues to read as follows:
Authority Clean Water Act, 3MJ.S.C. 1251
et scq,
Subpart B-Permit Application and
Special NPDES Program Requirements
112256 [Amended!
2« Section 122.28 is amended by
adding paragraph (b)(15), and revising
paragraphs (c)(2)(i)(D), (e)(l), (e)(2)(i),
(c)(2)(iii) and (e){2)(iv) to read as
follows:
§122.25 Storm water discharges
(»ppl!c»bl« to State NPDES programs, see
S 123.25).
(15) Uncontrolled sanitary landfill
means a landill or open dump, whether
in operation or closed, that does not
meet the requirements for runon or
runoff controls established pursuant to
subtitle D of the Solid Waste Disposal
Act.
(2) '
W * *
(D) For groups of more than 1,000
members, identify at least 100
dischargers participating in the group
application from which quantitative
data will be submitted. For groups of 100
or more members, identify a minimum of
ten percent of the dischargers
participating in the group application
from which quantitative data will be
submitted. For groups of between 21 and
99 members identify a minimum of ten
dischargers participating in the group
application from which quantitative
data will be submitted. For groups of 4
to 20 membtits, identify a minimum of 50
percent of the dischargers participating
in the group application from which
quantitative data will be submitted. For
groups with more than 10 members,
Cither 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, must
be identified to submit quantitative
data. For groups of 4 to 10 members, at
least one facility in each precipitation
zone indicated in appendix E of this part
in which members of the group are
located must be identifed to submit.
quantitative .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
paragraphs ic)(l)(i)(B) and (c)(l}(i)(C) of
this section, shall accompany this
section. Different factors impacting the
nature of the storm water discharges,
such as the processes used and material
management, shall be represented, to
the extent feasible, in a manner roughly
equivalent to their proportion in the
group..
***** '
(e) * * *
(1) Individual applications, (i) Except
as provided in paragraph (e)(l)(ii) of this
section, for any storm water discharge
associated with industrial activity
identified in paragraphs (b)(14) (i)
through (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 authorized by a storm
water general permit, a permit
application made pursuant to paragraph
(C) of this section shall be submitted to
the Director by October 1,1992;
(ii) For any storm water discharge
associated with industrial activity from
a facility that is owned or operated by a
municipality with a population of less
than 100,000 other than an airport,
powerplant, or uncontrolled sanitary
landfill, permit applications
requirements are reserved.
(2), . *
(i) Part 1. (A) Except as provided in
paragraph (e)(2)(i)(B) of this section, part
1 of the application shall be submitted to
the Director, Office of Wastewater
Enforcement and Compliance by
September 30,1991;
(B) Any municipality with a
population of less than 250,000 shall not
be required to submit a part 1
application before May 18,1992.
(C) For any storm water discharge
associated with industrial activity from
a facility that is owned; or operated by a
municipality with a population of less
than 100,000 other than an airport,
powerplant, or uncontrolled sanitary
landfill, permit applications,
requirements are reserved.
(iii) Part 2. (A) Except as provided in
paragraph (e)(2)(iii)(B) of this section,
part 2 of the application shall be
submittted to the Director, Office of
Wastewater Enforcement and
Compliance by October 1,1992;
(B) Any municipality with a
population of less than 250,000 shall not
be required to submit a part 1
application before May 17,1993.
(C) For any storm water discharge
associated with industrial activity from
a facility that is owned or operated by a
municipality with a population of less
than 100,000 other than an airport,
powerplant, or uncontrolled sanitary
landfill, permit applications
, requirements are reserved.
(iv) Rejected facilities. (A) Except as
provided in paragraph (e)(2)(iv)(B) of
this section, facilities that are rejected
as members of the group shall submit an
individual application (or obtain
coverage under an applicable general
permit) no later than 12 months after the
date of receipt of the notice of rejection
or October 1,1992, whichever comes I -,
first.
(B) Facilities that are owned or
operated by a municipality and that are
rejected as members of part 1 group
application shall submit an individual
application no later than 180 days after
, the date of receipt of the notice of
rejection or October 1,1992, whichever
is later.
* * * * *
2a. Section 122.28 is amended by
redesignating current paragraph (b)(2).
as (b)(3) and by adding a new paragraph
(b) (2) to read as follows:
§122.28 General permits (applicable to
state NPDES programs, see § 123.25).
,* ' * .*'*'* _ ..
(b) *,*.*
(2) Authorization to discharge, or ,
authorization to engage in sludge use
and disposal practices, (i) Except as
provided in paragraphs (b)(2)(v) and
(b)(2)(vi) of this section, dischargers (or
treatment works treating domestic
sewage) seeking coverage under a
general permit'shall submit to the
Director a written notice of intent to be
covered by the general permit. A
discharger (or treatment works treating
domestic sewage) who fails to submit a
notice of intent in accordance with the
terms of the permit is not authorized to
discharge, (or in the case of sludge
disposal permit, to engage in a sludge
use or disposal practice), under the
terms of the general permit unless the
general permit, in accordance with
paragraph (b)(2)(v) of this section,.
contains a provision that a notice of
intent is not required or the Director
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Federal Register v£ Vol. 57*. No.; 64 / Thursday. April 2, 1992 / Rules and Regulations
' notifies a discharger (or treatment: works
treating-donaesiiG sewage): that it is! -.
covered by a general pennit in - - : . ,v '
accordance with paragraph (b)(2)(vi) .of
. this section. A complete and timely, *
notice of intent,(Npl)t to be covered in
- 'v accordance with general permit: ".'
: .requirements, fulfills the requirements...-.
for permit applications for purposes:of
§§122.6,122.21 and 122.26. ' '" ^
; ' ;(ii) The contents of the liotice of intent
shall be specified in the general permit;:
and shaU require the submission of ; : r
, information necessary for adequate '"i '
program implementation, including at a
minimum, the.legal name arid address of
, the owner or operator, the facility name
and.address, type of facility or
; discharges, and the receiving stream(s).
: : General permits for stom water r
discharges associated; with'industrial
activity from iriactivermining, inactive
oil and gas operations, or"inactive..'..'---.:'.
: landfills occurring;on Federal lands ' ,
. where ail operator cannot be identified
may contain alternative notice of intent
requirements. All notices ofiritent shall.
be signed in accordance with § 122.22.
: (iii) General permits shair specify the ;
deadlines for submitting notices of:!
..X intent to be covered and the date(s|
;._.-.. when a discharger is authorized'to
discharge under the permit; - :. .
'-jv (iv) General permits shall specify
whether a discharger (or treatment
works treating domestic sewage) that
has submitted a complete and timely
notice,of intent to be covered in
. accordance with the general permit and
that is eligible for coverage under the
permit, is authorized to discharge, (or in-
, the case of a sludge disposal permit, to
; engage in a sludge use.or disposal
,'-: practice), in accordance, with the permit
.. -.. either upon receipt of the riotice of intent
by the Director, after a waiting period
specified in the general permit,_6n a date
specified in the general permitj or upon ' -
receipt of notification of inclusion by the
Director. Coverage may be terminated
or revoked in accordance with ;
paragraph (b)(3) of this section.-
Cv) Discharges other, than discharges
from publicly: owned treatment Works,
combined sewer overflows, primary
industrial facilities, and storm water
discharges associated with industrial
activity, may, at the discretion of the
Director, be authorized to discharge
under a general permit without
submitting a notice of intent where the
Director finds that a notice of intent "
requirement would be inappropriate. In
making such a finding, the Director shall
consideh the type of discharge; the ;
expected nature of the discharge; the
potential for toxic and conventional '-.-
pollutants In the discharges; the - .
expected volume of the discharges;
other means of identifying discharges
covered by the permit; and the . . -
estimated number of discharges to :be
covered by the pierniit. The Director -
shall provide in the public, notice of the
. general permit the reasons for not
requiring a notice of intent. ; .
(vi) The Director may notify a
discharger (or treatme.nt works treating
domestic sewage) that it is-covered by a
general permit, even if the discharger (or
treatrnent works treating, domestic
sewage) has not submitted a notice of
mtenttobe cpyered. A discharger (or
treatment works 'treating domestic .
sewage) so notified may request .an .
individual perinit urifder paragraph '
(b)(3)(iiij of this sectiop. : ; :; ;
'' ' "'''' "'
§12:2.28
3. In redesigna ted paragraph
122.28(b)(3Kii), the reference; "(b)(2)(i)"
is revised to read "(8)(3)(i)". ' '
4. In paragraph i22.28(c}(3), the
reference; "122.28(b)(2)(i). (A) through"
(F)" is revised to read "122,28(b)(3)(i) (A)
through(G)"' /-' ; -:.-' :": .
Subpart C Permit Conditions
5. Section 122^44 is aniendediby. \:-
revising paragraph (i)(2) arid addirlg
paragraphs (i)(3) through (i)(5) to read as
follows: /-. :.-.",. ', ;, ;
§ 122,44 Establishing limitations,
standards, and other permit conditions
(applicables to State NPDES programs, see
' ' ''
: ., .. -,
_-,_ (2) Except as provided hi paragraphs
(i)(4) and (i)[5)df&is section, - :"
requirements to report monitbiring
results shall be. established on a case-
by-case basis with a frequency
dependent on the nature and effect of
the discharge, but in no case less than
once a year. For sewage sludge use or
disposal practices, requirements to
monitor and report results shall be
established on a case-by-case basis with
a frequency dependent on the nature
and effect of the sewage sludge use or
disposal practice; minimally this shall
be as specified in 40 CFR part 503
-'- (where applicable), but in no case less
-than once a year. . "''.'-..',"..
-' (3) Requirements to report monitoring
results for storm water discharges "
, associated-with industrial activity which.
are subject id an effluent limitation
guideline shall be esta'blished on a case-
by-case basis with a frequency !
dependent on the nature and effect:of
the discharge, but in no.:case less than
ohceayear. "'-- '.-;r~] "/.- -..'.-"'.-'.-.;
(4) Requirements.to report monitoring
results for storm water discharges, ;
associated with industrial activity (other
than those addressed in paragraph (i)(3)
of this section) shall be established on a
case-by-case basis with a frequency
dependent on the, nature and effect of
-. the discharge; At a minimum, a permit
"-ifpr such a'discharge must require: ; '
/ ./(i) The discharger to conduct an
..annual inspection of the facility site to
identify areas coritributing to a storm
water discharge associated with ~', .
industrial activity and evaluate whether
;, measures to.reduce pollutant loadings
identified in a storm water pollution. -
prevention plan are adequate and
properly implemented in accordance
with the terms of the permit or whether,-
additional control measures are needed;
(ii) The discharger to maintain.for:a
period of three years a record /;
summarizing the results of the
inspection-and a certification that the '
facHity is'in compliance with the plan
arid the^permit, and identifying any
-incidents of non-corhpliartce; ; ,
(iii) Such report and certification be
Signed in accordance with § 122.22; and .
(iv) Permits for storm iyater
discharges associated with industrial
activity from inactive mining operations
may, where annual inspections are
impracticable, require certification once "
every three years by a Registered
Professional Engineer that the facility is
incompliance with the permit,-or -..-':
alternative requirements. ;
(5) Permits which do not require the
submittal of monitoring result reports at
least annually shall require that the
permittee report all instances of
noncompliance not reported under
§ 122.41(1) (1), (4), (5), and (6) at least
annually.
* *, ,* * " *.
{FR Doc. 92-7279 Filed 4-1-92; 8:45 am]
BILUNG CODE 6560-50-M
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