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
,	•
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

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       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
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             |   ,    ,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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