United States Office of Water EPA 833/Z-95-001
Environmental Protection (4203) April 1995
Agency
STORM WATER PHASE II
DIRECT FINAL RULE
AMENDMENT TO REQUIREMENTS FOR NATIONAL
POLLUTANT DISCHARGE ELIMINATION SYSTEM (NPDES)
PERMITS FOR STORM WATER DISCHARGES UNDER SECTION
402(p)(6) OF THE CLEAN WATER ACT; DIRECT FINAL AND
PROPOSED RULE
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Friday
April 7, 1995
Part IV
Environmental
Protection^ Agency
40 CFR Parts 122 and 124
National Pollutant Discharge Elimination
System (NPDES) Permits for Storm Water
d
and Proposed Rule
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ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 122 and 124
[FRL-5182-8]
RIN 2040-AC60
Amendment to Requirements for
National Pollutant Discharge
Elimination System (NPDES) Permits
for Storm Water Discharges Under
Section 402(p)(6) of the Clean Water
Act
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
SUMMARY: Today, EPA is promulgating
changes to its National Pollutant
Discharge Elimination System (NPDES)
storm water permit application
rrfA^l°nS "*£**the Clean water Act
(CWA) to establish a sequential
application process for all phase II
storm water discharges. (Phase II storm
water discharges include all discharges
composed entirely of storm water
except those specifically classified as
phase I discharges. Phase I discharges
include discharges issued a permit
before February 4,1987; discharges
associated with industrial activity-
discharges from a municipal separate
storm sewer system serving a
population of 100,000 or more; and
discharges that EPA or an NPDES State/
Indian Tribe determine to be
contributing to a violation of a water
quality standard or a significant
contributor of pollutants to the waters of
toe United States.) Application
deadlines are in two tiers. This action
will provide toe NPDES permitting
authority (either a State/Indian Tribe or
EPA) flexibility to target those phase II
dischargers that are contributing to a
water quality impairment or are a
significant contributor of pollutants for
permitting within toe next six years. All
other phase II dischargers are required
to apply for a permit only after six years
and only if the phase E regulatory
program' in place at that time requires
such applications.
EPA has also initiated a process by
inviting its partners who are
stakeholders in this matter to assist in
toe development of additional phase II
rules, which will be finalized by March
1,1999. These rules will determine toe
nature and extent of requirements, if
any that will apply to toe various types
of phase II facilities. Both toe changes
to the rules issued today as well as toe
development of toe comprehensive
phase II program through an
inclusionary process is a response by
;^——
EPA to toe direction of toe President on
horvma'M, 1-1 irtrtr- j. ,
5, regarding regulatory
DATES: This final rule will be effective
on August 2,1995 unless significant
adverse or critical comments that would
cause the Agency to change its position
are received by June 6,1995. In
accordance with 40 CFR 23.2, this rule
shall be considered final for purposes of
judicial review at 1 p.m. (Eastern time)
on August 2, 1995.
ADDRESSES: Written comments on this
rule may be submitted using one of two
dillerent methods. See SUPPLEMENTARY
INFORMATION for information on
submitting comments.
FOR FURTHER INFORMATION CONTACT'
Nancy Cunningham, Office of
Wastewater Management, Permits
Division (4203), Environmental
Protection Agency, 401 M Street, SW
Washington, DC 20460, (202) 260-9535.
SUPPLEMENTARY INFORMATION:
Submission of Comments
First, comments may be sent to the
Comment Clerk, Water Docket (Storm
Water Phase II Direct Final Rule), MC-
4*°V,Environmental Protection Agency
401 M Street, SW, Washington DC
20460. It is requested that an original
and one copy of the comments be
provided to this address. Comments will
be considered to be timely if they are
postmarked by June 6,1995.
Commenters who would like
acknowledgment of receipt of their
comments should include a self-
addressed, stamped envelope No
facsimiles (faxes) will be accepted
In the alternative, EPA will accept
comments electronically; EPA is
experimenting with electronic
commenting. Comments should be
addressed to the following Internet
address: SWPH2-DFR@epamail.epa.gov
Electronic comments must be submitted
as an ASCII file avoiding the use of
special characters and any form of
encryption. Electronic comments will be
rc S. , d into a PaPer version for the
official record. EPA will attempt to
clarify electronic comments if there is
an apparent error in transmission
Comments provided electronically will
be considered timely if they are
submitted electronically by 11:59 p m
(Eastern time) June 6,1995. Since this'
is still experimental, commenters may
want to submit both electronic
comments and duplicate paper
comments This document has also been
placed on the Internet for public review
and downloading at the following
location: gopher.epa.gov.
A copy of the supporting information
for this rule is available for review at
_
EPA's Water Docket, Room L-102, 401
M Street, SW, Washington, DC 20460
ro°no£ICCeSS to ^ docket materials, call
(202J 260-3027 between 9 a.m. and 3-30
p.m. (Eastern time) for an appointment.
I. Overview of Today's Action
t >0d^^PA is Promulgating changes
to its NPDES storm water permit
application regulations under the CWA
to establish a commonsense approach
which will provide for a sequential
application process for all phase II
storm water discharges. Application
deadlines are in two tiers. To obtain real
environmental results earlier, the
highest priority is being assigned to
those phase II dischargers that the
NPOES permitting authority (either a
State/Indian Tribe or EPA) determines
are contributing to a water quality
impairment or are a significant
contributor of pollutants. These
discheirgers will be required to apply for
a permit to the permitting authority
within. 180 days of receipt of notice
unless permission for a later date is
granted. This process will allow the
permitting authority to focus their
current efforts on those facilities that
will produce the greatest environmental
benefit earlier. All phase II facilities that
are not designated shall apply to the
permitting authority no later than six
years from the effective date of this
regulation, and only if the phase II
regulatory program in place at that time
requires such applications. EPA is also
estabhshing application requirements
tor these discharges, as well as making
other conforming changes to other
portions of its NPDES regulations.
loday s action is the first step in
EPA's approach to develop a
comprehensive phase II program under
SSJ^f *" Act (CWA) section
402 (p) (6) and is consistent with
President Clinton's February 21,1995
direction on regulatory reform as well'as
toe Office of Water's "National Program
Agenda for the Future." EPA cannot
deal with all storm water issues in
today's action. Some issues raised by
stakeholders, such as funding for storm
water best management practices and
certain issues with regard to compliance
with water quality standards, can only
be resolved by legislative action. In fact
, suPP°rted certain statutory changes
or clarifications to the storm water
program last year in President Clinton's
Clean Water Initiative. Some issues
such as the nature and extent of
requirements, if any, that will apply to
the various types of phase II sources,
can be resolved through rulemaking.
EPA has initiated a process of invitine
its partners who are stakeholders to
participate in development of
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/ V°l. en- No. 67 / Friday, April
and
17951
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expectations and requirements for more
comprehensive phase II rules, as well as
revisions and refinements to phase I.
EPA expects stakeholders will consider
the lessons learned from the phase I
storm water program in relooking at the
nhase I application process and
requirements. EPA intends to propose
thSse rules by September 1,1997,, «ad
finalize those rules by March 1,1999. It
the CWA is amended in a manner to
deal with these storm water issues, EPA
will move to expeditiously implement
the statutory changes. Today's
rulemaking will promote the public
interest by relieving dischargers of the
requirement to apply for permits until
(1) a phase II program is in place that
can be defined by regulation or changes
to the statute or (2) the permitting
authority makes an affirmative finding
of the need for a permit to protect water
quality.
II. Background
A. Phase 1 of the Storm Water Program
The Clean Water Act
The 1972 amendments to the Federal
Water Pollution Control Act (referred to
as the Clean Water Act) prohibit the
discharge of any pollutant to navigable
waters from a point source unless the
discharge is authorized by a NPDES
nermit. While water pollution control
measures in the United States for
industrial process wastewater and
municipal sewage have had major
success, urban and agricultural runoff
continue to contribute to our Nation s
remaining water quality problems.
EPA's Report to Congress under section
305(b) entitled The National Water
Quality Inventory. 1992 Report to
Congress, provides a national
assessment of surface water impacts
associated with runoff from various land
uses. The latest report concludes that
storm water runoff from a number ol
diffuse sources, including municipal
separate storm sewers and urban runolt
is a leading cause of water quality
impairment cited by States.
Section 402(p) was added to the CWA
in 1987 to require implementation ol a
comprehensive two-phased approach
for addressing storm water discharges
under the NPDES program. Section
402(p)(D currently prohibits EPA or
NPDES States (including Indian Tnbes
authorized to operate the NPDES
program) from requiring permits tor
Discharges composed entirely of storm
water (storm water discharges) until
October 1,1994, except for the
following five classes of phase I storm
water discharges specifically listed
under section 402(p)(2):
1^^^ •
(a) discharges issued a permit before
February 4,1987,
(b) discharges associated with
industrial activity, . .
(c) discharges from a municipal
separate storm sewer system serving a
population of 250,000 or more,
(d) discharges from a municipal
separate storm sewer system serving a
population of 100,000 or more but less
than 250,000, MonwQ
(e) discharges that EPA or an NPDES
State [or Tribe authorized to be treated
as a State for this purpose] determine to
be contributing to a violation of a water
quality standard or a significant
contributor of pollutants to the waters of
the United States. (EPA issued guidance
on August 8,1990 that included a
discussion of designation authority.)
Under CWA section 402(1)(2), permits
are not required for certain dischargers,
specifically, storm water runoff from
mining operations or oil and gas
facilities* * * if the storm water
discharge is not contaminated by
contact with* * * any overburden, raw
material, intermediate product, finished
product, byproduct, or waste product
located on the site of such operations.
CWA section 502(14) excludes
agricultural storm water discharges from
the definition of point source, thereby
excluding these discharges from the
NPDES permit requirement.
Section 402(p)(3) established
requirements for permits issued under
phase I of the storm water program
while section 402(p)(4) established
statutory deadlines for the initial steps
in implementing the phase I program.
Phase I Regulatory Program
EPA promulgated regulations defining
application requirements in 40 CFR
122.26 for phase I storm water
discharges on November 16,1990 (55
FR 47990). Permits are required for large
(over 250,000 population served) and
medium (100,000-250,000 population
served) municipal separate storm sewer
systems (MS4); storm water discharges
issued a permit before February 4,1987;
storm water discharges "associated with
industrial activity," which are identified
in the regulations by 11 specific
categories; and those dischargers
designated by the NPDES State or EPA.
EPA amended the November 1990
application regulations in various
respects in 1992 in response to a court
ruling in NRDC v. EPA, 966 F.2d 1292
(9th Cir., 1992) in which EPA
(construction activities disturbing less
than 5 acres and light industry without
exposure to storm water) until
application requirements were
established by regulation. (57 FR 60444,
December 18,1992.)
Phase I Implementation Activities
The efforts of EPA and the authorized
NPDES States to implement the phase 1
storm water program have focused on
(1) issuing general permits for industrial
storm water discharges, (2) reviewing
group applications for industrial storm
water dischargers, (3) publishing a
proposed multi-sector general permits
for storm water discharges from 29
industrial sectors, (4) reviewing
applications and issuing permits for
municipal separate storm sewer
systems, and (5) conducting outreach
activities.
imn Vjir., iaa*.j *" ¥»***«»- *-<» *»
established generally applicable permit
issuance deadlines, hi addition, EPA
issuance deaaunes. m auumu", ^ ^
noted that the Agency was not requiring
permit applications from the two
categories of storm water discharges
associated with industrial activity
B. Phase II of the Storm Water Program.
Water Quality Act of 1987 and Later
Amendments
The 1987 amendments established a
process for EPA to evaluate potential
phase II sources and designate sources
for regulation to protect water quality.
Section 402(p)(5) requires EPA, in
consultation with the States, to conduct
two studies of storm water discharges
other than phase I sources (i.e., potential
phase II sources). The first study, under
section 402(p)(5) (A) and (B) (to be
completed by October 1,1988), was to
identify storm water discharges not
covered under phase I and determine, to
the maximum extent practicable, the
nature and extent of pollutants in such
discharges. The second study, under
section 402(p)(5)(C) (to be completed by
October 1,1989), was to establish
procedures and methods to control
storm water discharges to the extent
necessary to mitigate impacts on water
^Section 402(p)(6) of the CWA requires
EPA in consultation with State and
local officials and based on the findings
of the reports required under section
402(p)(5), to issue regulations that
designate additional storm water
discharges to be controlled to protect
water quality under phase II of the
program and to establish a
comprehensive program to regulate such
designated sources. The program shall,
at a minimum, establish priorities,
requirements for State storm water
management programs, and expeditious
deadlines. The program may include
performance standards, guidelines,
guidance, and management practices
and treatment requirements, as
appropriate. These regulations were to
be issued by October 1,1993. EPA did
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17952 Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules and Regulations
not issue these regulations by the
statutory deadline. Today's action is a
common sense approach which defines
and establishes application submittal
requirements for phase II of the NPDES
program for storm water. As noted
below, EPA will be revising these
requirements over the next several years
in partnership with its numerous
stakeholders.
September 9,1992 Notice — Phase II
Issues
On September 9,1992, EPA published
a notice requesting information and
public comment on the phase II program
(57 FR 41344). The notice identified
three sets of issues associated with
developing phase II regulations,
including (1) how sources should be
identified, (2) types of control strategies
for these sources, and (3) deadlines for
implementing the requirements. The
notice presented a range of alternatives
under each issue in an attempt to
illustrate, and obtain input on, the full
range of potential approaches for a
phase II strategy. EPA received more
than 130 comments on the notice from
municipalities, trade groups or
industries, State or Federal agencies,
and other miscellaneous sources. No
comments were received from
environmental groups.
Rensselaerville Phase II Effort
In early 1993, the Rensselaerville
Institute and EPA held public and
expert meetings to assist in developing
and analyzing options for identifying
phase II sources and controls. One of the
options most favored by the various
groups participating included use of a
tiered approach that would provide for
EPA selection of high priority sources
for control by NPDES permits and State
selection of other sources for control
under a State program other than the
NPDES program.
Storm Water Reports to Congress
EPA is transmitting to Congress
concurrently with this action, its first
report required under sections 402(p)(5)
(A) and (B). This report is contained in
the record for this rule. This report was
broadly circulated in November 1993 by
the Agency to the States, trade groups,
environmental groups, Congressional
staff, other interested parties, and all
people who requested a copy. EPA
received comments from various States
and other groups and made changes, as
appropriate, to respond to those
comments.
Section 402(p)(5)(C) requires a second
study of storm water discharges for the
purpose of establishing procedures and
methods to control storm water
discharges that were not addressed as
part of the first phase of the NPDES
storm water program to the extent
necessary to mitigate impacts on water
quality. President Clinton's Clean Water
Initiative, which was released on
February 1,1994, contains the Agency's
recommendations for phase II and is
considered by EPA to be the second
Report to Congress. EPA has included
these materials in its report that is being
submitted to Congress.
President Clinton's Clean Water
Initiative
President Clinton's Clean Water
Initiative addresses a number of issues
associated with NPDES requirements for
storm water discharges, including (1)
establishing a phased approach for
compliance of discharges from
municipal separate storm sewer systems
with water quality standards with a
focus on controlling discharges from
growth and development areas, (2)
clarifying that the Maximum Extent
Practical standard should be applied in
a site specific, flexible manner taking
into account cost considerations as well
as water quality effects, (3) providing for
an exemption from the storm water
program for industrial facilities with no
activities or no significant materials
exposed to storm water, (4) providing
for deadline extensions for phase II of
the storm water program, (5) providing
for a targeted approach for phase II
storm water program requirements,
including regulation of storm water
from industrial facilities by
municipalities, and (6) providing for
control of discharges from inactive and
abandoned mines located on Federal
lands in a more targeted, flexible
manner.
Several bills to reauthorize the CWA
which include amendments to NPDES
requirements for storm water were
introduced in the House and Senate in
the 103rd Congress; however,
substantive changes to the CWA were
not made. Provisions contained in the
President's Initiative, as well as the
other bills, will be considered by the
Agency in its comprehensive
rulemaking involving stakeholders, to
the extent the Agency is authorized to
make changes discussed there under
existing law.
The Agency recognizes that there may
be action in the 104th Congress to
change storm water requirements.
Stakeholders have raised some issues
that go well beyond the scope of EPA's
regulatory authority and can only be
addressed by legislation. Certain parties
have requested that the Agency delay
issuance of this regulation until
Congress acts. EPA is obligated to
implement the current law and is taking
this action to provide certainty to phase
II dischargers as to when their permit
applications are due if relief is not
Erovided through regulatory or
igisilative action. EPA is willing to
work with affected parties on statutory
issues and, if the law is changed, will
move to expeditiously implement the
changes.
October 1,1994, Deadline for Permits
under Phase II
On October 18,1994, EPA issued
guidance interpreting the October 1,
1994, statutory deadline pertaining to
phase II storm water dischargers. The
memorandum recognized that EPA had
not issued regulations implementing the
requirements of section 402(p)(6) before
October 1,1994; and the Agency and
approved NPDES States are unable to
waive the statutory requirement that
point source discharges of pollutants to
waters of the United States need an
NPDES permit. The memorandum also
recognized that at the time of the
guidance, EPA had completed a draft
study identifying potential point source
discharges of storm water for regulatory
consideration under the requirements of
section 402(p)(6) (as noted, EPA is
transmitting the Reports to Congress);
and the Agency had initiated a process
to develop implementing regulations (of
which today's action is a part). The
guidance also referred to the general
application requirements for the NPDES
program and the Agency's January 12,
1994, storm water enforcement strategy.
EPA Instituting Federal Advisory
Committee Effort
The Agency has established a Federal
Advisory Committee Act advisory
committee to provide advice on various
wet weather issues. EPA will work with
a subcommittee of this advisory
committee to form a partnership to
specifically address phase II storm water
issue s. This action will complement the
specific regulatory action EPA is taking
today. Both actions are part of the
Agency's response to the President's
direction on regulatory reform. EPA
wants to develop a common sense
approach to allow EPA and the States/
Indian Tribes to manage for results in
developing a phase II storm water
progi-am that will provide ecosystem
protection. EPA believes there is
considerable latitude and flexibility
within the existing language contained
in section 402(p)(6) in establishing the
scope and extent of the phase n program
and the nature of the controls used.
Some questions EPA will advance build
upon the input the Agency has received
earliesr on phase n, including questions
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Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules and Regulations 17953
addressing (1) the scope, mechanisms
and timing of phase II, (2) how EPA can
work more effectively with the varying
interests to provide outreach and
technical assistance for phase II, and (3)
consideration of lessons learned from
phase I. EPA would be receptive to
including in the inclusionary process
other issues that have developed broad-
based support; these issues may include
research, cost-effective solutions and
expedited implementation. EPA is in
the early stages of development of the
specifics of the phase II program, which
can and will include revisions and
refinements to phase I, including
relooking at the phase I application
process and requirements. EPA
recognizes that many of the
municipalities and industrial facilities
that are subject to the phase I
requirements believe there is a need to
make major changes to phase I.
EPA is committed to conducting this
phase II process, including
improvements to limited portions of
phase I, in an inclusionary manner,
inviting representatives of affected
stakeholders "to the table" to discuss
their respective interests.
Today s regulatory action is being
taken as a common sense approach to
provide a framework under existing law
for these actions to be undertaken in an
orderly fashion, as well as certainty
regarding the status of phase II
discharges. This approach will allow the
permitting authority to manage for
results by providing the flexibility to
call certain phase II dischargers into the
program based upon a finding of water
quality impact.
III. Today's Action
Regulation Changes
Today, EPA is promulgating changes
to its NPDES storm water permit
application regulations to establish a
sequential application process for all
phase II storm water discharges.
Application deadlines are in two tiers.
To obtain real environmental results
earlier, the highest priority is being
assigned to those phase II dischargers
that the NPDES permitting authority
(either a State/Indian Tribe or EPA)
determines are contributing to a water
quality impairment or are a significant
contributor of pollutants. These
dischargers will be required to apply for
a permit within 180 days of receipt of
notice from the permitting authority,
unless permission for a later date is
granted. All other phase II facilities will
be required to apply to the permitting
authority no later than six years from
the effective date of this regulation if the
phase II regulatory program in place at
that time requires such applications.
EPA is also establishing application
requirements for these discharges, as
well as making other conforming
changes to other portions of its NPDES
regulations. The specifics of the changes
follow.
First, to codify the already existing
statutory requirement upon the
expiration of the moratorium for phase
II storm water discharges, EPA is adding
40 CFR 122.26(a)(9) to bring into the
NPDES program, as of October 1,1994,
discharges composed entirely of storm
water that are not otherwise already
required by the phase I regulations to
obtain a permit. EPA considers the
portions of the two phase I categories
that were remanded by the court in
NRDC v. EPA to be covered by these
phase II requirements, as are the
facilities owned by municipalities that
were otherwise excluded from phase I
by the Intermodal Surface
Transportation Efficiency Act of 1991
(Transportation Act). These phase II
storm water dischargers will be required
to apply for a permit according to the
application requirements in new
§ 122.26(g). This provision continues to
recognize the applicability of statutory
NPDES exemptions provided by CWA
sections 402(1) and 502(14).
Second, EPA is adding 40 CFR
122.26(g), which will contain the
regulatory requirements for discharges
composed entirely of storm water under
section 402(p)(6). Any operator of a
point source required to obtain a permit
under § 122.26(a)(9) shall submit an
application in accordance with the
following requirements.
Section 122.26(g)(l) contains the
application deadlines. If a phase II
discharger complies with these
application deadlines, the facility will
not be subject to enforcement action for
discharge without a permit or for failure
to submit a permit application. First, if
the permitting authority (the regulations
use the term "Director" which means
either the NPDES State/Indian Tribe
Director or EPA Regional Administrator,
or authorized representative) determines
and notifies the discharger that a
discharge contributes to a violation of a
water quality standard or is a significant
contributor of pollutants to waters of the
United States, the operator shall apply
for a permit to the permitting authority
within 180 days of receipt of notice,
unless permission for a later date is
granted (see 40 CFR 124.52(c)). This
provision will allow the NPDES
permitting authority to manage for
environmental results by providing the
flexibility to bring certain phase II
sources within the NPDES program at
this time, as determined necessary by
the State/Indian Tribe or EPA. This
determination can be done on a
watershed or class basis where the
permitting authority determines there is
a significant impact or contribution. In
addition, the NPDES permitting
authority may find the information
contained in the Storm Water Reports to
Congress useful in determining the
location and nature of such impacts.
The August 9,1990, guidance EPA
issued on designation authority may be
useful in making this determination.
The 180 day time period provided for
submission of an application is
consistent with the time period
provided for other situations in the
NPDES program where a facility is
asked to submit an application (40 CFR
122.21(c)(l) and (2)) and the time period
generally provided for applications for
permit renewal (40 CFR 122.21(d)). EPA
recognizes that this time period is
longer than that provided by existing
regulations for those phase I storm water
dischargers designated into the program
(40 CFR 122.26(e)(5)). EPA is
establishing this longer time period to
provide an opportunity for the phase II
discharger to communicate with the
permitting authority about necessary
information, as well as to collect and
submit the application information.
All other phase II facilities shall apply
to the State/ Indian Tribe or EPA Region
no later than six years from the effective
date of this regulation. EPA may change
this application deadline for at least
certain categories of dischargers in the
future as part of the rulemaking process
involving its various partners dealing
with the scope, nature and extent to the
phase II program. However, if changes
are not made, all phase II storm water
dischargers will have to submit
applications by August 2, 2001.
Section 122.26(g)(2) contains
provisions for application requirements
for phase II discharges. At this time, the
existing phase I individual industrial
application requirements in
§ 122.26(c)(l) or application
requirements for municipal separate
storm sewer discharges contained in
§ 122.26(d) will be the requirements for
phase II discharges, unless otherwise
modified by the permitting authority. As
noted earlier, EPA will be relooking at
the application requirements as part of
the advisory committee on wet weather
issues.
EPA is also specifically providing for
and encouraging the use of general
permits for phase II discharges and
would require submission of a notice of
intent to be covered by the general
permit, consistent with the current
requirements of 40 CFR 122.28(b)(2) for
phase I storm water discharges. EPA and
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17954 Federal Register / Vol.
No. 67
the authorized States have effectively
and efficiently used general permits for
phase I storm water discharges and EPA
believes general permits also will be an
effective mechanism to use in phase II
when NPDES permits are required
Group applications for phase II
discharges are not provided for because
Uie general permit process will be
available to almost all phase II
discharges.
In developing phase II permits, the
permitting authority may apply the
requirements contained in section
'for (f 3\Which are the laments
for phase I permits, on a case-by-case
Friday.
Basis of Regulations
Today's action is the first step of
EPA s approach to develop a
comprehensive phase II program
PK6)' and onsistenw
inton's February 21 1995
'
EPA is also making several
.
for the permit moratoriu m
Jf § 1?2-26^W to October 1,
n 'tfleCt the Chan8e in this date
provided by the Water Resources
Development Act of 1992. Second, EPA
is amending the title to § 122.26(el to
read Application deadlines under
paragraph (a)(l)" to make clear that
these are phase I requirements and
EPA Th!°H d™ f1.11168' 3S i^^ted by
fcWV. Third, EPA is amending
§ 122.26(eHlKii) which are the permit
application requirements for those
municipally owned facilities for whom
application deadlines were postponed
facXTrSP°rtati0n Act to reflect the
tact that these are now phase II
facilities. (Section 1068(c) of the
Transportation Act amended the CWA
to provide that EPA shall not require
any municipality with a population of
0000
aer a
a permit for any storm water discharge
associated with industrial activity other
than an airport, power plant, or
uncontrolled sanitary landfill owned or
operated by such municipalities before
October 1, 1992.) Because EPA is not
making available the group application
process m phase II, similar^ changes are
not being made to § 122.26(e)(2)
EPA is also making changes to other
applicable NPDES regulatory
provisions. EPA is modifying the
requirements of 40 CFR 122.21(c)(ll to
clarify that new phase H storm water
discharges do not have to submit a
permit application until six years after
the effective date of this regulation, or
earher if designated by the permit! ng
authority. EPA is making conforming
changes to 40 CFR I24.52(c) to clarify
the application of these provisions to
*
icember 30,1994,
Jgram Agenda for the
; —•"»-• "^n. has initiated an
mclusionary process involving its
partners to develop more
comprehensive phase II rules; EPA
intends to propose those rules by
SKgMSsjssr11"-
SK&SSflsSSM11*
stakeholders as well as the input that
has already been provided to die
Agency on the phase II September 1992
notice and the 1993 Rensselaerville
Institute phase II effort discussed earlier
m this notice. EPA will also consider
Uie information in the Storm Water
Reports to Congress, and the
recommendations in President Clinton's
Clean Water Initiative. Finally, EPA will
implement any statutory changesthat
are enacted during program
development. Today's action is based on
recommendations in thosp Hnriim^v,* *
thp f>Ytor,f *v. . . Ube documents to
Uie extent they envision an orderly
tiered process for regulation of storrn
water, allowing the NPDES permitting
tai™°£pyAt0 manasf for results ^ this
time. EPA is considering making other
changes o improve its operation of the
Phase ' *<«? water program in the
comprehensive phase II rulemaking
action, including revising phase I
municipal application requirements
application from all phase II storm
water discharges in 6 years.
The regulations also establish a
comprehensive program containing
current permit application 8
reqiurements. The permitting authority
will be able to establish appropriate
permit requirements on a case^by case
bans at this time. This first portion of
the phase II program establishes
priorities and deadlines for permit
applications, which, as currently
structured, will be a part of the NPDES
program. These requirements and
changes to 40 CFR 122.26 and
conforming changes to other NPDES
requirements in part 122 are required
parts of State/Tribal NPDES programs
fe f CFR 123.25). The iniL Son
of the phase II program which is being
established today does not contain a§
comprehensive set of performance
standards, guidelines, guidance
management practices, and treatment
2SHTS- T£ese conditions ca^ be
established by the permitting authority
on a case-by-case basis upon permit
issuance to designated phase II
o «*«»-'** iaou.cn luciay luiiij
part the requirements contained in
section 402(p)(6) of the CWA. It is being
issued by EPA today after consultation
with State, local officials, Indian Tribes
and parts of the regulated and '
environmental community The
regulation, which is the first of a
sequential process, is consistent with
the information contained in the Storm
Water Reports to Congress and the
President's Initiative as it is providing
the framework of a tiered
implementation of phase II
requirements, allowing the NPDES
permitting authority current flexibility
to manage for results. The application
requirements allow the NPDES
permitting authority to bring within the
phase program at this timl those
phase II discharges impacting water
quality or who are a significant
contributor of pollutants and, if EPA
does not take action to change its
regulations, will require a plrmit
Todeiy's action adopts a tiered
approach for selection of high priority
sources! to be controlled by NPDES
permits;, which was the lead option
presented for public comment in the
September 1992 notice, and one of the
orPon°nnS "T faV°red bv ^ vari°us
groups .participating in the effort
conducted in early 1993 by the
Rensselaerville Institute and EPA as
well as lie Storm Water Reports to
Congress and the President's Clean
Water Initiative. In its rulemaking effort
EPA believes there will be discuslion
with its partners of other approaches
that will provide flexibility to the States
to deal with sources that are not
EPA £vi?Tember 1992 phase IJ n°tice,
EPA invited comment on various issues
regarding phase II of the storm water
program, including the appropriate
deadlines for implementing phase II
requirements. The comments EPA
received on this issue generally
recommended implementation of phase
II m stages and reiterated the need for
time to prepare regulations and to
conduct outreach to implement the
program, as well as the need to wait and
UltS ° ^Pkmentation of
am- The actions EPA
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VOL SO. NO. —- '-"•
ments
The Order defines "significant
regulatory action" as one that is likely
:
__ .
Supporting Documentation Asivvfun. s couuuwu. ~—:- r--
,.^,,.0^^ jffiisssss:-
must determine whether ^regulatory MUM V Assodation of counties,
action is ''s^^1^^^ of National League of Cities U A
.. :_,.,Wutiin[uticeoi mnference of Mayors, and the National
Association of Flood and Stormwater
Management Agencies) have raised
many issues to the Agency and have
submitted a letter dated February16
1995, to the Agency which is contained
v,, .... mnrp or in the record for this matter. The
r.sir.sSy"~ ss»^K?«tfs.
sector of the economy, productivity, J^**^ may act on this matter, that the
competition, Jobs, the envaonment . _,_ v,, PPA ,. not in
public health or safety, or State, local,
or tribal governments or communities,
2&S££=SEK.
-SSHia^ws-s^
impact of entitlements, grants, user fees,
or loan programs, or the rights and
^W^SSKfSfcj-- 5SSS£R.m-=3f
ssssSSsssrfS*- TB-bassftSifc
-jsttSissssft
crce^
did not consult with local officials on
Sis matter. EPA has responded to many
of the municipalities'concerns
including the legal basis of its action
aTd potential changes to the statute in
Sis preamble. EPA did consult with
various representatives of local
governments early in the development
°pxi_: n,,laHnn as well 8S more
EPA has determined tnatuu*
SS»!C«=Si.
phase II facilities. This rule was
submitted to OMB for review.
B. Executive Order 12875
Under Executive Order 12875,
b&ln^^^'
s^ssssssss^^.,
State andTribal governments to provide
meaningful and timely input in ^
omprenensiveiy uL .----j-
The reaction of EPA s Al&u is
•!• 4-Un Offil ~f IMotoP Will
positive; the LHtir
representative to
the
besa U has developed an
effective process to obtain input from
State, Tribal and local governments
before issuance of this rule, as well as
receiving comments on the direct final
rule and accompanying proposed
rulemaking, and has met the
consultation requirements for States,
fpderallv recognized Tribes and
SocaE under the terms of Executive
Order 12875.
17955
- — —•
estimates contained in this ICR, as
appropriate, in its renewal process.
D Regulatory Flexibility Act
Under the Regulatory Flexibility Act
CRFA), 5 U.S.C. 601 * «*:: H«A murt
prepare a Regulatory Flexibility
Analysis for regulations having a
significant impact on a su^anUal
number of small entities. The RFA
recognizes three kinds of small entities,
and defines them as follows:
(1) Small governmental
iurisdictions-any government ot a
district with a population of less than
5°( 2)°Small business-any business
which is independently owned tad
operated and not dominant in its field,
as defined by the Small Business
Administration regulations under the
%1lsr^Sation-anynot-fo£
^SSSS$^^SSA
inEFSA hat determined that today's rule
would not have a significant impact on
Tsubstantial number of smal entities,
and that a Regulatory Flexibility
Analysis therefore is unnecessary. The
basis for this determination is through
today's action EPA is benefiting small
entities as this action (1) adopts et
common sense approach to deal with
the issue of storm water phase 11
requirements, (2) provides the ability for
tte State/Tribe or EPA to manage for
results by providing flexibihty'to the
permitting authority to deal witn storm
water phase II permitting at this time
has initiated a consultation proc-- •
both States and Tribes which will be
continued through public comment
ifich discussed Ms
action with the representatives of the
Itatesials governments, ^Agency s
American Indian Environmental Offace
(AIEO), and parts of the regulated
The reaction of the States is posiUve.
The States and the Association of State
and Interstate Water Pollution Control
Administrators (ASIWPCA) support the
approach that is being taken vmder
existing law; the States and ASIWPCA
a£o support Wurrent changes to the
law ASIWPCA has submitted a letter to
S^Agency dated March 3,1995, which
S included in the record for this matter.
C. Paperwork Reduction Act
The Paperwork Reduction Act, 44
U S.C. 3501 et seq., is intended to
minimize the reporting and record-
keeping burden on the regulated
community, as well as to minimize the
cS Federal information collection
and dissemination. In general, the Act
requires that information requesU.and
record-keeping requirements affecting
ten or more non-Federal respondents be
approved by the Office of Management
^fflslSsting information collection
request (ICR) entitled "Application for
^DES Discharge Permit and Sewage
Sludge Management Permit (OMB
Number 2040-0086) contains
Emation that responds to this issue
Xl storm water discharges, including
those facilities designated into the
program. EPA will review and revise the
committed to isou.^«— r
storm water phase II program
regulations by March 1,1999; in that
rulemaking EPA will reconsider its
Regulatory Flexibility Act analysis.
E Unfunded Mandates
Under section 202 of the Unfunded
Mandates Reform Act of 19,?5
,
s State, local, or tribal
Soens, or to the private sector
will be $100 million or more in any one
year. Under section 205, EPA must
select the most cost-effective and least
burdensome alternative that achieves
die objective of such a rule and that is
consistent with statutory ' requirements^
Section 203 requires EPA to establish a
-------
plan for informing and advising any
small governments that may be
significantly and uniquely affect by any
„„.„,, uuai me costs to l>j
--i, or tribal governments, or the
tPhnr^n^',fr°m^s "•?• ^1 be less
™- s ruenng
significantly reduces the immediate
regu atory burden imposed on phase II
SE 5aS determined Sat
—..mioin «*4iurements
(APA) ^"'ainjftrative Procedure Act
IAPA). EPA has chosen to use the direct
final approach for this rule because the
Agency does not expect to receive
significant adverse or critical comment
iml w.for ^ most expeditious
enlirelv of*/*™ dischar8es composed
entirely of storm water, other than those
dischargers identified by § 122.26(a)m
shall apply for and obtain a permit
according to the application
requirements in § 122.26(e)
* * 8
Ape' sstent
the APA. Because in the absence
Although not required to make a
nnding under section 206, EPA
concludes that this rule is cost-effective
State and local governments. In a
September 9,1992, Federal Reeister
notice, EPA invited comment process
5to£?b."C consideration of reasonable
alternative approaches for the phase II
storm water program. Today's rule
provides for the first step for any of
those alternatives by providing for an
orderly process for development of
regulations. By establishing regulatory
relief until development of those ^
alternative approaches, today's
rulemaking itself provides the most
cost-effective and least burdensome
alternative to achieve the objectives of
cT^L31 ^ stage> consistent with
----- , consistent
statutory requirements.
As discussed previously EPA
initiated consultation with
representative organizations of small
f 2«7^e!JtS. Under Exec"tive Order
12875. In doing so, EPA provided notice
to potentially affected small
governments to enable them to provide
meaningful and timely input. EPA plans
to inform, educate, and advise small
governments on compliance with any
requirements that may be develop £?
further development of storm water
w^fh D r",leS in the course of ^e wet
weaker advisory committee convened
for this purpose. That committee will
also provide advice related to
reconsideration of existing
"
- -—, u
-------
| , ,rn ..... ... «. „ , Friday. Ap.il 7. !995 /
ii^••^•^i^MM^"^^^^^^^^^^ — '
in
(ill All other discharges shall apply to
the Director no later than August 2,
(2) Application requirements. The
operator shall submit an application i
accordance with the following
requirements, unless otherwise
modified by the Director:
m Individual application for non-
nicW discharges. The ^m
contained in paragraph (cKD °* ^s
— - • --
The requirements contained in 40 CFR
122.28(b)(2).
PART124-IAMENDED1
4. The authority citation for part 124
continues to read as follows:
Authority: Resource Conservation and
^UMppJf cat/on requirements for
municipal separate storm sewer
SSes. The requirements contained
fnpSaph(d) of this section.
Mi) Notice of intent to be covered by
general permit issued by the Director.
5. Section 124.52 is amended by
revising the parenthetical statement in
paragraph (c) to read as follows.
§ 124.52 Permits required on a case-by-
case basis.
Rules and Regulations 17957
"
(cl* * * (See 40 CFR 122.26 (a)(lKv),
(c)(l)(v),and(g)(lKi))* * *
6. Section 124.52 is amended by
revising the next to the last sentence in
paragraph (c) to read as follows:
§124.52 Permits required on a case-by-
case basis.
, *
frl* * * The discharger must apply
for a permit under 40 CFR 122.26
aKl)(v) and (c)W(v) within 60 days of
notice or under 40 CFR 122.26(g)(l)M
within 180 days of notice, unless
^mission for a later date is granted by
die Regional Administrator.
[FR Doc. 95-8209 Filed 4-6-95; 8:45 ami
BILLING CODE 6SSO-60-P
agena
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40 CFR Parts 122 and 124
[FRL-5182-S]
RIN 2040-AC60
Amendment to Requirements for
National Pollutant Discharge
Elimination System (NPDES) Permits
for Storm Water Discharges Under
Section 402(p)(6) of the Clean Water
Act
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
SUMMARY: Today, EPA is proposing
changes to its National Pollutant
Discharge Elimination System (NPDES)
storm water permit application
regulations under the Clean Water Act
(CWA) to establish a sequential
application process for all phase II
storm water discharges. EPA is also
proposing to establish application
requirements for these discharges, as
well as making other conforming
changes to other portions of its NPDES
regulations. In the final rules section of
this Federal Register, the Agency is
promulgating these changes as a
"direct" final rule because the Agency
does not expect significant adverse or
critical comments and wants to provide
prompt implementation of the rule as
soon as possible to provide for certainty
for phase II storm water dischargers; the
Agency also believes it is contrary to the
public interest to further delay the
establishment of permit application
requirements for phase II storm water
discharges at this time. This proposal
invites comment on the substance of the
direct final rule in the "final rules"
section of today's Federal Register.
DATES: Comments on this proposed rule
must be received in writing by June 6
1995.
ADDRESSES: Written comments on this
proposed rule may be submitted using
one of two different methods.
First, comments may be sent to the
Comment Clerk, Water Docket (Storm
Water Phase II Proposed Rule), MC-
4101, Environmental Protection Agency
401 M Street, SW, Washington DC '
20460. It is requested that an original
and one copy of the comments be
provided to this address. Comments will
considered to be timely if they are
postmarked by June 6,1995.
Commenters who would like
acknowledgement of receipt of their
comments should include a self-
addressed, stamped envelope. No
facsimiles (faxes) will be accepted.
In the alternative, EPA will accept
comments electronically; EPA is
experimenting with electronic
commenting. Comments should be
addressed to the following Internet
address: SWPH2-DFR@epamail.epa.gov.
Electronic comments must be submitted
as an ASCII file avoiding the use of
special characters and any form of
encryption. Electronic comments will be
transferred into a paper version for the
official record. EPA will attempt to
clarify electronic comments if there is
an apparent error in transmission.
Comments provided electronically will
be considered timely if they are
submitted electronically by 11:59 p.m.
(Eastern time) June 6,1995. Since this
is still experimental, commenters may
want to submit both electronic
comments and duplicate paper
comments. This document has also been
placed on the Internet for public review
and downloading at the following
location: gopher.epa.gov.
A copy of the supporting information
for this rule is available for review at
EPA's Water Docket, Room L-102, 401
M Street, SW, Washington, DC 20460.
For access to the docket materials, call
(202) 260-3027 between 9 a.m. and 3:30
p.m. (Elastern time) for an appointment.
FOR FURTHER INFORMATION CONTACT:
Nancy Cunningham, Office of
Wastewater Management, Permits
Division (4203), Environmental
Protection Agency, 401 M Street, SW
Washington, DC 20460, (202) 260-9535.
SUPPLEMENTARY INFORMATION: See the
information provided in the direct final
action which is located in the rules
section of this Federal Register.
Dated: March 29,1995.
Carol M. Browner,
Administrator.
[FR Doc. 95-8210 Filed 4-6-95; 8:45 am]
BILLING CODE 658O-SO-P
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Corrections
Federal Register
Vol. 60, No. 74
Tuesday, April 18, 1995
This section of the FEDERAL REGISTER
contains editorial corrections of previously
published Presidential. Rule. Proposed Rule.
and Notice documents. These corrections are
prepared by the Office of the Federal
Register. Agency prepared corrections are
Issued as signed documents and appear in
the appropriate document categories
elsewhere in the issue.
April 10,1995, the EFFECTIVE DATE
should read "(April 10.1995).".
BtLUNO CODE 1SOS-01-O
DEPARTMENT OF AGRICULTURE
Forest Service
Willamette Provincial Interagency
Executive Committee (PIEC), Advisory
Committee
Correct/on
In notice document 95-7445
appearing on page 15746 in the issue of
Monday, March 27,1995, in the second
column, under SUMMARY, in the fifth
line, "255 Capitol Street" should read
"355 Capitol Street".
BJLUN
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