S B
= ST
Wednesday
December 8, 1999
Part II
Environmental
Protection Agency
40 CFR Parts 9, 122, 123, and 124
National Pollutant Discharge Elimination
System—Regulations for Revision of the
Water Pollution Control Program
Addressing Storm Water Discharges;
Final Rule
Report to Congress on the Phase II
Storm Water Regulations; Notice
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68722 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 9,122 ,123, and 124
[FRL—6470-8]
RIN 2040-AC82
National Pollutant Discharge
Elimination System—Regulations for
Revision of the Water Pollution Control
Program Addressing Storm Water
Discharges
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: Today's regulations (Phase II)
expand the existing National Pollutant
Discharge Elimination System (NPDES)
storm water program (Phase I) to
address storm water discharges from
small municipal separate storm sewer
systems (MS4s) (those serving less than
100,000 persons) and construction sites
that disturb one to five acres. Although
these sources are automatically
designated by today's rule, the rule,,
allows for the exclusion of certain
sources from the national program based
on a demonstration of the lack of impact
on water quality, as well as the
inclusion of others based on a higher
likelihood of localized adverse impact
on water quality. Today's regulations
also exclude from the NPDES program
storm water discharges from industrial
facilities that have "no exposure" of
industrial activities or materials to
storm water. Finally, today's rule
extends from August 7, 2001 until
March 10, 2003 the deadline by which
certain industrial facilities owned by
small MS4s must obtain coverage under
an NPDES permit. This rule establishes
a cost-effective, flexible approach for
reducing environmental harm by storm
water discharges from many point
sources of storm water that are currently
unregulated.
EPA believes that the implementation
of the six minimum measures identified
for small MS4s should significantly
reduce pollutants in urban storm water
compared to existing levels in a cost-
effective manner. Similarly, EPA
believes that implementation of Best
Management Practices (BMP) controls at
small construction sites will also result
in a significant reduction in pollutant
discharges and an improvement in
surface water quality. EPA believes this
rule will result in monetized financial,
recreational and health benefits, as well
as benefits that EPA has been unable to
monetize. Expected benefits include
reduced scouring and erosion of
streambeds, improved aesthetic quality
of waters, reduced eutrophication of
aquatic systems, benefit to wildlife and
endangered and threatened species,
. tourism benefits, biodiversity benefits
and reduced costs for siting reservoirs.
In addition, the costs of industrial storm
water controls will decrease due to the
exclusion of storm water discharges
from facilities where there is "no
exposure" of storm water to industrial
activities and materials.
DATES: This regulation is effective on
February 7, 2000. The incorporation by
reference of the rainfall erosivity factor
publication listed in the rule is
approved by the Director of the Federal
Register as of February 7, 2000. For
judicial review purposes, this final rule
is promulgated as of 1:00 p.m. Eastern
Standard Time, on December 22,1999
as provided in 40 CFR 23.2.
ADDRESSES: The complete
administrative record for the final rule
and the ICR have been established
under docket numbers W-97—12 (rule)
and W-97-15 (ICR), and includes
supporting documentation as well as
printed, paper versions of electronic
comments. Copies of information in the
record are available upon request. A
reasonable fee may be charged for
copying. The record is available for
inspection and copying from 9 a.m. to
4 p.m., Monday through Friday,
excluding legal holidays, at the Water
Docket, EPA, East Tower Basement, 401
M Street, SW, Washington, DC. For
access to docket materials, please call
202/260-3027 to schedule an
appointment.
FOR FURTHER INFORMATION CONTACT:
George Utting, Office of Wastewater
Management, Environmental Protection
Agency, Mail Code 4203, 401 M Street,
SW, Washington, DC 20460; (202) 260-
5816; sw2@epa.gov.
SUPPLEMENTARY INFORMATION: Entities
potentially regulated by this action
include:
Category
Federal, State,
Tribal, and
Local Gov-
ernments.
Industry
Construction
Activity.
Examples of regulated
entities
Operators of small separate
storm sewer systems, in-
dustrial facilities that dis-
charge storm water asso-
ciated with industrial activ-
ity or construction activity
disturbing 1 to 5 acres.
Operators of industrial facili-
ties that discharge storm
water associated with in-
dustrial activity.
Operators of construction ac-
tivity disturbing 1 to 5
acres.
This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to be
regulated by this action. This table lists
the types of entities that EPA is now
aware could potentially be regulated by
this action. Other types of entities not
listed in the table could also be
regulated. To determine whether your
facility or company is regulated by this
action, you should carefully examine
the applicability criteria in §§ 122.26(b),
122.31, 122.32, and 123.35 of the final
rule. If you have questions regarding the
applicability of this action to a
particular entity, consult the person
listed in the preceding FOR FURTHER
INFORMATION CONTACT section.
Table of Contents:
I. Background
A. Proposed Rule and Pre-proposal
Outreach
B. Water Quality Concerns/Environmental
Impact Studies and Assessments
1. Urban Development
a. Large-Scale Studies and Assessments
b. Local and Watershed-Based Studies
c. Beach Closings/Advisories
2. Non-storm Water Discharges Through
Municipal Storm Sewers
3. Construction Site Runoff
C. Statutory Background
D. EPA's Reports to Congress
E. Industrial Facilities Owned or Operated
by Small Municipalities
F. Related Nonpoint Source Programs
II. Description of Program
A. Overview
1. Objectives EPA Seeks to Achieve in
Today's Rule
2. General Requirements for Regulated
Entities Under Today's Rule
3. Integration of Today's Rule With the
Existing Storm Water Program
4. General Permits
5. Tool Box
6. Deadlines Established in Today's Action
B. Readable Regulations
C. Program Framework: NPDES Approach
D. Federal Role
1. Develop Overall Framework of the
Program
2. Encourage Consideration of "Smart
Growth" Approaches
3. Provide Financial Assistance
4. Implement the Program in Jurisdictions
not Authorized to Administer the NPDES
Program
5. Oversee State and Tribal Programs
6. Comply with Applicable Requirements
as a Discharger
E. State Role
1. Develop the Program
2. Comply With Applicable Requirements
as a Discharger
3. Communicate with EPA
F. Tribal Role
G. NPDES Permitting Authority's Role for
the NPDES Storm Water Small MS4
Program
I. Comply With Implementation
Requirements
2. Designate Sources
a. Develop Designation Criteria
b. Apply Designation Criteria
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68723
c. Designate Physically Interconnected
Small MS4s
d. Respond to Public Petitions for
Designation
3. Provide Waivers
4. Issue Permits
5. Support and Oversee the Local Programs
H. Municipal Role
1. Scope of Today's Rule
2. Municipal Definitions
a. Municipal Separate Storm Sewer
Systems (MS4s)
b. Small Municipal Separate Storm Sewer
Systems
i. Combined Sewer Systems (CSS)
ii. Owners/Operators
c. Regulated Small MS4s
i. Urbanized Area Description
ii. Rationale for Using Urbanized Areas
d. Municipal Designation by the Permitting
Authority
e. Waiving the Requirements for Small
MS4s
3. Municipal Permit Requirements
a. Overview
5. Summary of Permitting Options
ii. Water Quality-Based Requirements
iii. Maximum Extent Practicable
b. Program Requirements—Minimum
Control Measures
i. Public Education and Outreach on Storm
Water Impacts
ii. Public Involvement/Participation
iii. Illicit Discharge Detection and
Elimination
iv. Construction Site Storm Water Runoff
Control
v. Post-Construction Storm Water
Management in New Development and
Redevelopment
vi. Pollution Prevention/Good
Housekeeping for Municipal Operations
c. Application Requirements
i. Best Management Practices and
Measurable Goals
ii. Individual Permit Application for a
§122.34(b) Program
iii. Alternative Permit Option/ Tenth
Amendment
iv. Satisfaction of Minimum Measure
Obligations by Another Entity
v. Joint Permit Programs
d. Evaluation and Assessment
i. Recordkeeping
ii. Reporting
iii. Permit-As-A-Shield
e. Other Applicable NPDES Requirements
f. Enforceability
g. Deadlines
h. Ree valuation of Rule
I. Other Designated Storm Water
Discharges
1. Discharges Associated with Small
Construction Activity
a. Scope
b. Waivers
i. Rainfall-Erosivity Waiver
ii. Water Quality Waiver
c. Permit Process and Administration
d. Cross-Referencing State, Tribal, or Local
Erosion and Sediment Control Programs
e. Alternative Approaches
2. Other Sources
3. ISTEA Sources
4. Residual Designation Authority
J. Conditional Exclusion for "No Exposure'
of Industrial Activities and Materials to
Storm Water
1. Background
2. Today's Rule
3. Definition of "No Exposure"
K. Public Involvement/Public Role
L. Water Quality Issues
1. Water Quality Based Effluent Limits
2. Total Maximum Daily Loads and
Analysis to Determine the Need for
Water Quality-Based Limitations
3. Anti-Backsliding
4. Water Quality-Based Waivers and
Designations
III. Cost-Benefit Analysis
A. Costs
1. Municipal Costs
2. Construction Costs
B. Quantitative Benefits
1. National Water Quality Model
2. National Water Quality Assessment
a. Municipal Measures
i. Fresh Waters Benefits
ii. Marine Waters Benefits
b. Construction Benefits
c. Summary of Benefits From the National
Water Quality Assessment
C. Qualitative Benefits
D. National Economic Impact
IV. Regulatory Requirements
A. Paperwork Reduction Act
B. Executive Order 12866
C. Unfunded Mandates Reform Act
1. Summary of UMRA Section 202 Written
Statement
2. Selection of the Least Costly, Most Cost-
Effective or Least Burdensome
Alternative That Achieves the Objectives
of the Statute
3. Effects on Small Governments
D. Executive Order 13132
E. Regulatory Flexibility Act
F. National Technology Transfer And
Advancement Act
G. Executive Order 13045
H. Executive Order 13084
I. Congressional Review Act
I. Background
A. Proposed Rule and Pre-Proposal
Outreach
On January 9, 1998 (63 FR 1536), EPA
proposed to expand the National
Pollutant Discharge Elimination System
(NPDES) storm water program to
include storm water discharges from
municipal separate storm sewer systems
(MS4s) and construction sites that were
smaller than those previously included
in the program. The proposal also
addressed industrial sources that have
"no exposure" of industrial activities
and materials to storm water. Today,
EPA is promulgating a final rule to
implement most of the proposed
revisions with minor changes based on
public comments received on the
proposal. Today's final rule also extends
the deadline by which certain industrial
facilities operated by municipalities of
less than 100,000 population must be
covered by a NPDES permit; the
deadline is changed from August 7,
2001 until March 10, 2003.
In 1972, Congress amended the
Federal Water Pollution Control Act
(commonly referred to as the Clean
Water Act (CWA)) to prohibit the
discharge of any pollutant to waters of
the United States from a point source
unless the discharge is authorized by an
NPDES permit. The NPDES program is
a program designed to track point
sources and require the implementation
of the controls necessary to minimize
the discharge of pollutants. Initial
efforts to improve water quality under
the NPDES program primarily focused
on reducing pollutants in industrial
process wastewater and municipal
sewage. These discharge sources were
easily identified as responsible for poor,
often drastically degraded, water quality
conditions.
As pollution control measures for
industrial process wastewater and
municipal sewage were implemented
and refined, it became increasingly
evident that more diffuse sources of
water pollution were also significant
causes of water quality impairment.
Specifically, storm water runoff
draining large surface areas, such as
agricultural and urban land, was found
to be a major cause of water quality
impairment, including the
nonattainment of designated beneficial
uses.
In 1987, Congress amended the CWA
to require implementation, in two
phases, of a comprehensive national
program for addressing storm water
discharges. The first phase of the
program, commonly referred to as
"Phase I," was promulgated on
November 16, 1990 (55 FR 47990).
Phase I requires NPDES permits for
storm water discharge from a large
number of priority sources including
municipal separate storm sewer systems
("MS4s") generally serving populations
of 100,000 or more and several
categories of industrial activity,
including construction sites that disturb
five or more acres of land.
Today's rule, which is the second
phase of the storm water program,
expands the existing program to include
discharges of storm water from smaller
municipalities in urbanized areas and
from construction sites that disturb
between one and five acres of land.
Today's rule allows certain sources to be
excluded from the national program
based on a demonstrable lack of impact
on water quality. The rule also allows
other sources not automatically
regulated on a national basis to be
designated for inclusion based on
increased likelihood for localized
adverse impact on water quality.
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68724 Federal Register/Vol. 64, No. 235/Wednesday, December's, 1999/Rules and Regulations
Today's rule also conditionally excludes
storm water discharges from industrial
facilities that have "no exposure" of
industrial activities or materials to
storm water. Today's rule and the effort
that led to its development are
commonly referred to as "Phase II." On
August 7,1995, EPA promulgated a
final rule that required facilities to be
regulated under Phase II to apply for a
NPDES permit by August 7, 2001,
unless the NPDES permitting authority
designates them as requiring a permit by
an earlier date. (60 FR 40230). That rule
is referred to as "the Interim Phase II
Rule." Today's rule replaces the Interim
Phase II rule.
EPA performed extensive outreach
and worked with a variety of
stakeholders prior to proposing today's
rule. On September 9,1992, EPA
published a notice requesting
information and public comment on
how to prepare regulations under CWA
section 402(p)(6) (see 57 FR 41344). The
notice identified three sets of issues
associated with developing new NPDES
storm water regulations: (1) How should
EPA identify unregulated sources of
storm water to protect water quality, (2)
what types of control strategies should
EPA develop for these sources, and (3)
what are appropriate deadlines for
implementing new requirements. The
notice recognized that potential sources
for coverage under the section 402(p)(6)
regulations would fall into two main
categories: municipal separate storm
sewer systems and individual
(commercial and residential) sources.
EPA received more than 130 comments
on the September 9,1992, notice. For
further discussion of the comments
received, see Storm Water Discharges
Potentially Addressed by Phase II of the
National Pollutant Discharge
Elimination System: Report to Congress
(EPA, 1995a), pp. 1-21 to 1-22, and
Appendix J (which provides a detailed
summary of the comments received as
they relate to the specific issues raised
in the notice).
In early 1993, the Rensselaerville
Institute and EPA held public and
expert meetings to assist in developing
and analyzing options for identifying
unregulated sources and possible
controls. The report on the 1993
meetings identified two options that
were favored by the various groups that
participated. One option was a program
that allowed States to select sources to
be controlled in a manner consistent
with criteria developed by EPA. A
second option was a tiered approach
under which EPA would select high
priority sources for control by NPDES
permits and States would select other
sources for control under a State water
quality program other than the NPDES
program. For additional details see the
"Report on the EPA Storm Water
Management Program (Rensselaerville
Study)," Appendix I of Storm Water
Discharges Potentially Addressed by
Phase II of the National Pollutant
Discharge Elimination System: Report to
Congress (EPA, 1995 a).
EPA also conducted outreach with
representatives of small entities in
conjunction with the convening of a
Small Business Advocacy Review Panel
under the Small Business Regulatory
Enforcement Fairness Act (SBREFA).
This process is discussed in section IV.E
of today's preamble. For additional
background see the discussion in the
preamble to the proposal for today's
rule.
To assist EPA by providing advice
and recommendations regarding the
urban municipal wet weather water
pollution control program, EPA
established the Urban Wet Weather
Flows Federal Advisory Committee
(hereinafter, "FACA Committee") under
the Federal Advisory Committee Act
(FACA). The Office of Management and
Budget approved the charter for the
FACA Committee on March 10,1995.
The FACA Committee provided a forum
for identifying and addressing issues
associated with water quality impacts
from storm water sources.
The FACA Committee established two
subcommittees: the Storm Water Phase
II FACA Subcommittee and the Sanitary
Sewer Overflows (SSOs) FACA
Subcommittee. Consistent with the
requirements of FACA, the membership
of both the FACA Committee and the
subcommittees was balanced among
EPA's various outside stakeholder
interests, including representatives from
municipalities, States, Indian Tribes,
EPA, industrial and commercial sectors,
agriculture, and environmental and
public interest groups.
The Storm Water Phase II FACA
Subcommittee ("Subcommittee") met
fourteen times between September 1995
and June 1998. The 32 Subcommittee
members discussed possible regulatory
frameworks at these meetings as well as
during numerous other meetings and
conference calls. Members of the FACA
Committee provided views regarding
the development of the "no exposure"
provision and other provisions in drafts
of the Phase II rule. EPA provided
Subcommittee members with four
successive drafts of the proposed rule
and preamble, outlines of the rule,
summaries of the written comments
received on each draft, and documents
identifying the changes made to each
draft. In the course of providing input
to the Committee, individual
Subcommittee members provided
significant input and advice that EPA
considered in the context of public
comments received. Ultimately, the
Subcommittee did not provide a written
report back to the FACA Committee,
and the FACA Committee did not
provide written advice and
recommendations to EPA. The Agency,
therefore, did not rely on group
recommendations in developing today's
rule, but does consider the process to
have resulted in important public
outreach.
B. Water Quality Concerns/
Environmental Impact Studies and
Assessments
Storm water runoff from lands
modified by human activities can harm
surface water resources and, in turn,
cause or contribute to an exceedance of
water quality standards by changing
natural hydrologic patterns, accelerating
stream flows, destroying aquatic habitat,
and elevating pollutant concentrations
and loadings. Such runoff may contain
or mobilize high levels of contaminants,
such as sediment, suspended solids,
nutrients (phosphorous and nitrogen),
heavy metals and other toxic pollutants,
pathogens, toxins, oxygen-demanding
substances (organic material), and
floatables (U.S. EPA. 1992.
Environmental Impacts of Storm Water
Discharges: A National Profile. EPA
841-R-92-001. Office of Water.
Washington, DC). After a rain, storm
water runoff carries these pollutants
into nearby streams, rivers, lakes,
estuaries, wetlands, and oceans. The
highest concentrations of these
contaminants often are contained in
"first flush" discharges, which occur
during the first major storm after an
extended dry period (Schueler, T.R.
1994. "First Flush of Stormwater
Pollutants Investigated in Texas." Note
28. Watershed Protection Techniques
1(2)). Individually and combined, these
pollutants impair water quality,
threatening designated beneficial uses
and causing habitat alteration or
destruction.
Uncontrolled storm water discharges
from areas of urban development and
construction activity negatively impact
receiving waters by changing the
physical, biological, and chemical
composition of the water, resulting in an
unhealthy environment for aquatic
organisms, wildlife, and humans. The
following sections discuss the studies
and data that address and support this
finding.
Although water quality problems also
can occur from agricultural storm water
discharges and return flows from
irrigated agriculture, this area of
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68725
concern is statutorily exempted from
regulation as a point source under the
Clean Water Act and is not discussed
here. (See CWA section 502(14)). Other
storm water sources not specifically
identified in the regulations may be of
concern in certain areas and can be
addressed on a case-by-case (or
category-by-category) basis through the
NPDES designation authority preserved
by CWA section 402(p)(2)(6), as well as
today's rule.
1. Urban Development
Urbanization alters the natural
infiltration capability of the land and
generates a host of pollutants that are
associated with the activities of dense
populations, thus causing an increase in
storm water runoff volumes and
pollutant loadings in storm water
discharged to receiving waterbodies
(U.S. EPA, 1992). Urban development
increases the amount of impervious
surface in a watershed as farmland,
forests, and meadowlands with natural
infiltration characteristics are converted
into buildings with rooftops, driveways,
sidewalks, roads, and parking lots with
virtually no ability to absorb storm
water. Storm water and snow-melt
runoff wash over these impervious
areas, picking up pollutants along the
way while gaining speed and volume
because of their inability to disperse and
filter into the ground. What results are
storm water flows that are higher in
volume, pollutants, and temperature
than the flows in less impervious areas,
which have more natural vegetation and
soil to filter the runoff (U.S. EPA, 1997.
Urbanization and Streams: Studies of
Hydrologic Impacts. EPA 841-R-97-009.
Office of Water. Washington, DC).
Studies reveal that the level of
imperviousness in an area strongly
correlates with the quality of the nearby
receiving waters. For example, a study
in the Puget Sound lowland ecoregion
found that when the level of basin
development exceeded 5 percent of the
total impervious area, the biological
integrity and physical habitat conditions
that are necessary to support natural
biological diversity and complexity
declined precipitously (May, C.W., E.B.
Welch, R.R. Homer, J.R. Karr, and B.W.
May. 1997. Quality Indices for
Urbanization Effects in Puget Sound
Lowland Streams, Technical Report No.
154. University of Washington Water
Resources Series). Research conducted
in numerous geographical areas,
concentrating on various variables and
employing widely different methods,
has revealed a similar conclusion:
stream degradation occurs at relatively
loxv levels of imperviousness, such as 10
to 20 percent (even as low as 5 to 10
percent according to the findings of the
Washington study referenced above)
(Schueler, T.R. 1994. "The Importance
of Imperviousness." Watershed
Protection Techniques 1(3); May, C.,
R.R. Horner, J.R. Karr, B.W. Mar, and
E.B. Welch. 1997. "Effects Of
Urbanization On Small Streams In The
Puget Sound Lowland Ecoregion."
Watershed Protection Techniques 2(4);
Yoder", C.Q., R.J. Miltner, and D. White.
1999. "Assessing the Status of Aquatic
Life Designated Uses in Urban and
Suburban Watersheds." In Proceedings:
National Conference on Retrofits
Opportunities in Urban Environments.
EPA 625-R-99-002, Washington, DC;
Yoder, C.O and R.J. Miltner. 1999.
"Assessing Biological Quality and
Limitations to Biological Potential in
Urban and Suburban Watersheds in
Ohio." In Comprehensive Stormwater &•
Aquatic Ecosystem Management
Conference Papers, Auckland, New
Zealand). Furthermore, research has
indicated that few, if any, urban streams
can support diverse benthic
communities at imperviousness levels
of 25 percent or more. An area of
medium density single family homes
can be anywhere from 25 percent to
nearly 60 percent impervious,
depending on the design of the streets
and parking (Schueler, 1994).
In addition to impervious areas, urban
development creates new pollution
sources as population density increases
and brings with it proportionately
higher levels of car emissions, car
maintenance wastes, pet waste, litter,
pesticides, and household hazardous
wastes, which may be washed into
receiving waters by storm water or
dumped directly into storm drains
designed to discharge to receiving
waters. More people in less space
results in a greater concentration of
pollutants that can be mobilized by, or
disposed into, storm water discharges
from municipal separate storm sewer
systems. A modeling system developed
for the Chesapeake Bay indicated that
contamination of the Bay and its
tributaries from runoff is comparable to,
if not greater than, contamination from
industrial and sewage sources (Cohn-
Lee, R. and D. Cameron. 1992. "Urban
Stormwater Runoff Contamination of
the Chesapeake Bay: Sources and
Mitigation." The Environmental
Professional, Vol. 14).
a. Large-Scale Studies and Assessments
In support of today's regulatory
designation of MS4s in urbanized areas,
the Agency relied on broad-based
assessments of urban storm water runoff
and related water quality impacts, as
well as more site-specific studies. The
first national assessment of urban runoff
characteristics was completed for the
Nationwide Urban Runoff Program
(NURP) study (U.S. EPA. 1983. Results
of the Nationwide Urban Runoff
Program, Volume 1.—Final Report.
Office of Water. Washington, D.C.). The
NURP study is the largest nationwide
evaluation of storm water discharges,
which includes adverse impacts and
sources, undertaken to date.
EPA conducted the NURP study to
facilitate understanding of the nature of
urban runoff from residential,
commercial, and industrial areas. One
objective of the study was to
characterize the water quality of
discharges from separate storm sewer
systems that drain residential,
commercial, and light industrial
(industrial parks) sites. Storm water
samples from 81 residential and
commercial properties in 22 urban/
suburban areas nationwide were
collected and analyzed during the 5-
year period between 1978 and 1983. The
majority of samples collected in the
study were analyzed for eight
conventional pollutants and three heavy
metals.
Data collected under the NURP study
indicated that discharges from separate
storm sewer systems draining runoff
from residential, commercial, and light
industrial areas carried more than 10
times the annual loadings of total
suspended solids (TSS) than discharges
from municipal sewage treatment plants
that provide secondary treatment. The
NURP study also indicated that runoff
from residential and commercial areas
carried somewhat higher annual
loadings of chemical oxygen demand
(COD), total lead, and total copper than
effluent from secondary treatment
plants. Study findings showed that fecal
coliform counts in urban runoff
typically range from tens to hundreds of
thousands per hundred milliliters of
runoff during warm weather conditions,
with the median for all sites being
around 21,000/100 ml. This is generally
consistent with studies that found that
fecal coliform mean values range from
1,600 coliform fecal units (CFU)/100 ml
to 250,000 cfu/100 ml (Makepeace, O.K.,
D.W. Smith, and S.J. Stanley. 1995.
"Urban Storm Water Quality: Summary
of Contaminant Data." Critical Reviews
in Environmental Science and
Technology 25(2):93-139). Makepeace,
et al., summarized ranges of
contaminants from storm water,
including physical contaminants such
as total solids (76—36,200 mg/L) and
copper (up to 1.41 mg/L); organic
chemicals; organic compounds, such as
oil and grease (up to 110 mg/L); and
microorganisms.
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68726 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
Monitoring data summarized in the
NURP study provided important
information about urban runoff from
residential, commercial, and light
industrial areas. The study concluded
that the quality of urban runoff can be
affected adversely by several sources of
pollution that were not directly
evaluated in the study, including illicit
discharges, construction site runoff, and
illegal dumping. Data from the NURP
study were analyzed further in the U.S.
Geological Survey (USGS) Urban Storm
Water Data Base for 22 Metropolitan
Areas Throughout the United States
study (Driver, N.E., M.H. Mustard, R.B.
Rhinesmith, and R.F. Middleburg. 1985.
U.S. Geological Survey Urban Storm
Water Data Base for 22 Metropolitan
Areas Throughout the United States.
. Report No. 85-337 USGS. Lakewood,
CO). The USGS report summarized
additional monitoring data compiled
during the mid-1980s, covering 717
storm events at 99 sites in 22
metropolitan areas and documented
problems associated with metals and
sediment concentrations in urban storm
water runoff. More recent reports have
confirmed the pollutant concentration
data collected in the NURP study
(Marsalek, J. 1990. "Evaluation of
Pollutant Loads from Urban Nonpoint
Sources." Wat. Sci. Tech. 22(10/11):23-
30; Makepeace, et al., 1995).
Commenters argued that the NURP
study does not support EPA's
contention that urban activities
significantly jeopardize attainment of
water quality standards. One commenter
argued that the NURP study and the
1985 USGS study are seriously out of
date. Because they were issued 10 years
or more before the implementation of
the current storm water permit program,
the data in those reports do not reflect
conditions that exist after
implementation of permits issued by
authorized States and EPA for storm
water from construction sites, large
municipalities, and industrial activities.
In response, EPA notes that it is not
relying solely on the NURP study to
describe current water quality
impairment. Rather, EPA is citing NURP
as a source of data on typical pollutant
concentrations in urban runoff. Recent
studies have not found significantly
different pollutant concentrations in
urban runoff when compared to the
original NURP data (see Makepeace, et
al., 1995; Marsalek, 1990; and Pitt, et al.,
1995).
America's Clean Water—the States'
Nonpoint Source Assessment
(Association of State and Interstate
Water Pollution Control Administrators
(ASIWPCA). 1985. America's Clean
Water—The States' Nonpoint Source
Assessment. Prepared in cooperation
with the U.S. EPA, Office of Water,
Washington, DC), a comprehensive
study of diffuse pollution sources
conducted under the sponsorship of the
Association of State and Interstate Water
Pollution Control Administrators
(ASIWPCA) and EPA revealed that 38
States reported urban runoff as a major
cause of designated beneficial use
impairment and 21 States reported
storm water runoff from construction
sites as a major cause of beneficial use
impairment. In addition, the 1996
305(b) Report (U.S. EPA. 1998. The
National Water Quality Inventory, 1996
Report to Congress. EPA 841-R-97-008.
Office of Water. Washington, DC),
provides a national assessment of water
quality based on biennial reports
submitted by the States as required
under CWA section 305(b) of the CWA.
In the CWA 305(b) reports, States,
Tribes, and Territories assess their
individual water quality control
programs by examining the attainment
or nonattainment of the designated uses
assigned to their rivers, lakes, estuaries,
wetlands, and ocean shores. A
designated use is the legally applicable
use specified in a water quality standard
for a watershed, waterbody, or segment
of a waterbody. The designated use is
the desirable use that the water quality
should support. Examples of designated
uses include drinking water supply,
primary contact recreation (swimming),
and aquatic life support. Each CWA
305(b) report indicates the assessed
fraction of a State's waters that are fully
supporting, partially supporting, or not
supporting designated beneficial uses.
In their reports, States, Tribes, and
Territories first identified and then
assigned the sources of water quality
impairment for each impaired
waterbody using the following
categories: industrial, municipal
sewage, combined sewer overflows,
urban runoff/storm sewers, agricultural,
silvicultural, construction, resource
extraction, land disposal, hydrologic
modification, and habitat modification.
The 1996 Inventory, based on a
compilation of 60 individual 305(b)
reports submitted by States, Tribes, and
Territories, assessed the following
percentages of total waters nationwide:
19 percent of river and stream miles; 40
percent of lake, pond, and reservoir
acres; 72 percent of estuary square
miles; and 6 percent of ocean shoreline
waters. The 1996 Inventory indicated
that approximately 40 percent of the
Nation's assessed rivers, lakes, and
estuaries are impaired. Waterbodies
deemed as "impaired" are either
partially supporting designated uses or ,
not supporting designated uses.
The 1996 Inventory also found urban
runoff/discharges from storm sewers to
be a major source of water quality
impairment nationwide. Urban runoff/
storm sewers were found to be a source
of pollution in 13 percent of impaired
rivers; 21 percent of impaired lakes,
ponds, and reservoirs; and 45 percent of
impaired estuaries (second only to
industrial discharges). In addition,
urban runoff was found to be the
leading cause of ocean impairment for
those ocean miles surveyed.
In addition, a recent USGS study of
urban watersheds across the United
States has revealed a link between urban
development and contamination of local
waterbodies. The study found the
highest levels of organic contaminants,
known as polycyclic aromatic
hydrocarbons (PAHs) (products of
combustion of wood, grass, and fossil
fuels), in the reservoirs of urbanized
watersheds (U.S. Geological Survey
(USGS). 1998. Research Reveals Link
Between Development and
Contamination in Urban Watersheds.
USGS news release. USGS National
Water-Quality Assessment Program).
Urban storm water also can contribute
significant amounts of toxicants to
receiving waters. Pitt, et. al. (1993),
found heavy metal concentrations in the
majority of samples analyzed. Industrial
or commercial areas were likely to be
the most significant pollutant source
areas (Pitt, R., R. Field, M. Lalor, M.
Brown 1993. "Urban stormwater toxic
pollutants: assessment, sources, and
treatability" Water Environment
Research, 67(3):260-75).
b. Local and Watershed-Based Studies
In addition to the large-scale
nationwide studies and assessments, a
number of local and watershed-based
studies from across the country have
documented the detrimental effects of
urban storm water runoff on water
quality. A study of urban streams in
Milwaukee County, Wisconsin, found
local streams to be highly degraded due
primarily to urban runoff, while three
studies in the Atlanta, Georgia, region
were characterized as being "the first
documentation in the Southeast of the
strong negative relationship between
urbanization and stream quality that has
been observed in other ecoregions"
(Masterson, J. and R. Bannerman. 1994.
"Impacts of Storm Water Runoff on
Urban Streams in Milwaukee County,
Wisconsin." Paper presented at National
Symposium on Water Quality:
American Water Resources Association;
Schueler, T.R. 1997. "Fish Dynamics in
Urban Streams Near Atlanta, Georgia."
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68727
Technical Note 94. Watershed
Protection Techniques 2(4)). Several
other studies, including those
performed in Arizona (Maricopa
County), California (San Jose's Coyote
Creek), Massachusetts (Green River),
Virginia (Tuckahoe Creek), and
Washington (Puget Sound lowland
ecoregion), all had the same finding:
runoff from urban areas greatly impair
stream ecology and the health of aquatic
life; the more heavily developed the
area, the more detrimental the effects
(Lopes, T. and K. Possum. 1995.
"Selected Chemical Characteristics and
Acute Toxicity of Urban Stormwater,
Streamflow, and Bed Material, Maricopa
County, Arizona." Water Resources
Investigations Report 95-4074. USGS;
Pitt, R. 1995. "Effects of Urban Runoff
on Aquatic Biota." In Handbook of
Ecotoxicology; Pratt, J. and R. Coler.
1979. "Ecological Effects of Urban
Stormwater Runoff on Benthic
Macroinvertebrates Inhabiting the Green
River, Massachusetts." Completion
Report Project No. A-094. Water
Resources Research Center. University
of Massachusetts at Amherst.; Schueler,
T.R. 1997. "Historical Change in a
Warmwater Fish Community in an
Urbanizing Watershed." Technical Note
93. Watershed Protection Techniques
2(4); May, C., R. Homer, J. Karr, B. Mar,
and E. Welch. 1997. "Effects Of
Urbanization On Small Streams In The
Puget Sound Lowland Ecoregion."
Watershed Protection Techniques 2(4)).
Pitt and others also described the
receiving water effects on aquatic
organisms associated with urban runoff
(Pitt, R.E. 1995. "Biological Effects of
Urban Runoff Discharges" In
Stormwater Runoff and Receiving
Systems: Impact, Monitoring, and
Assessment, ed. E.E Herricks, Lewis
Publishers; Crunkilton, R., J. Kleist, D.
Bierman, J. Ramcheck, and W. DeVita.
1999. "Importance of Toxicity as a
Factor Controlling the Distribution of
Aquatic Organisms in an Urban
Stream." In Comprehensive Stormwater
6-Aquatic Ecosystem Management
Conference Papers. Auckland, New
Zealand).
In Wisconsin, runoff samples were
collected from streets, parking lots,
roofs, driveways, and lawns. Source
areas were broken up into residential,
commercial, and industrial. Geometric
mean concentration data for residential
areas included total solids of about 500-
800 mg/L from streets and 600 mg/L
from lawns. Fecal coliform data from
residential areas ranged from 34,000 to
92,000 cfu/100 mL for streets and
driveways. Contaminant concentration
data from commercial and industrial
source areas were lower for total solids
and fecal coliform, but higher for total
zinc (Bannerman, R.T., D.W. Owens,
R.B. Dods, and N.J. Hornewer. 1993.
"Sources of Pollutants in Wisconsin
Stormwater." Wat. Sci. Tech. 28(3-
5):241-59).
Bannerman, et al. also found that
streets contribute higher loads of
pollutants to urban storm water than
any other residential development
source. Two small urban residential
watersheds were evaluated to determine
that lawns and streets are the largest
sources of total and dissolved
phosphorus in the basins (Waschbusch,
R.J., W.R. Selbig, and R.T. Bannerman.
1999. "Sources of Phosphorus in
Stormwater and Street Dirt from Two
Urban Residential Basins In Madison,
Wisconsin, 1994-95." Water Resources
Investigations Report 99—4021. U.S.
Geological Survey). A number of other
studies have indicated that urban
roadways often contain significant
quantities of metal elements and solids
(Sansalone, J.J. and S.G. Buchberger.
1997. "Partitioning and First Flush of
Metals in Urban Roadway Storm
Water." ASCE Journal of Environmental
Engineering 123(2); Sansalone, J.J., J.M.
Koran, J.A. Smithson, and S.G.
Buchberger. 1998. "Physical
Characteristics of Urban Roadway
Solids Transported During Rain Events"
ASCE Journal of Environmental
Engineering 124(5); Klein, L.A., M.
Lang, N. Nash, and S.L. Kirschner. 1974.
"Sources of Metals in New York City
Wastewater"/. Water Pollution Control
Federation 46(12):2653-62; Barrett, M.E,
R.D. Zuber, E.R. Collins, J.F. Malina, R.J.
Charbeneau, and G.H Ward., 1993. "A
Review and Evaluation of Literature
Pertaining to the Quantity and Control
of Pollution from Highway Runoff and
Construction." Research Report 1943-1.
Center for Transportation Research,
University of Texas, Austin).
c. Beach Closings/Advisories
Urban wet weather flows have been
recognized as the primary sources of
estuarine pollution in coastal
communities. Urban storm water runoff,
sanitary sewer overflows, and combined
sewer overflows have become the largest
causes of beach closings in the United
States in the past three years. Storm
water discharges from urban areas not
only pose a threat to the ecological
environment, they also can substantially
affect human health. A survey of coastal
and Great Lakes communities reports
that in 1998, more than 1,500 beach
closings and advisories were associated
with storm water runoff (Natural
Resources Defense Council. 1999. "A
Guide to Water Quality at Vacation
Beaches" New York, NY). Other reports
also document public health, shellfish
bed, and habitat impacts from storm
water runoff, including more than 823
beach closings/advisories issued in 1995
and more than 407 beach closing/
advisories issued in 1996 due to urban
runoff (Natural Resources Defense
Council. 1996. Testing the Waters
Volume VI: Who Knows What You're
Getting Into. New York, NY; NRDC.
1997., Testing the Waters Volume VII:
How Does Your Vacation Beach Rate.
New York, NY; Morton, T. 1997.
Draining to the Ocean: The Effects of
Stormwater Pollution on Coastal Waters.
American Oceans Campaign, Santa
Monica, CA). The Epidemiological
Study of Possible Adverse Health Effects
of Swimming in Santa Monica Bay
(Haile, R.W., et. al. 1996. "An
Epidemiological Study of Possible
Adverse Health Effects of Swimming in
Santa Monica Bay." Final Report
prepared for the Santa Monica Bay
Restoration Project) concluded that
there is a 57 percent higher rate of
illness in swimmers who swim adjacent
to storm drains than in swimmers who
swim more than 400 yards away from
storm drains. This and other studies
document a relationship between
gastrointestinal illness in swimmers and
water quality, the latter of which can be
heavily compromised by polluted storm
water discharges.
2. Non-Storm Water Discharges Through
Municipal Storm Sewers
Studies have shown that discharges
from MS4s often include wastes and
wastewater from non-storm water
sources. Federal regulations
(§122.26(b)(2)) define an illicit
discharge as "* * * any discharge to an
MS4 that is not composed entirely of
storm water * * *," with some
exceptions. These discharges are
"illicit" because municipal storm sewer
systems are not designed to accept,
process, or discharge such wastes.
Sources of illicit discharges include, but
are not limited to: sanitary wastewater;
effluent from septic tanks; car wash,
laundry, and other industrial
wastewaters; improper disposal of auto
and household toxics, such as used
motor oil and pesticides; and spills from
roadway and other accidents.
Illicit discharges enter the system
through either direct connections (e.g.,
wastewater piping either mistakenly or
deliberately connected to the storm
drains) or indirect connections (e.g.,
infiltration into the MS4 from cracked
sanitary systems, spills collected by
drain outlets, and paint or used oil
dumped directly into a drain). The
result is untreated discharges that
contribute high levels of pollutants,
_
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68728 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
including heavy metals, toxics, oil and
grease, solvents, nutrients, viruses and
bacteria into receiving waterbodies. The
NURP study, discussed earlier, found
that pollutant levels from illicit
discharges were high enough to
significantly degrade receiving water
quality and threaten aquatic, wildlife,
and human health. The study noted
particular problems with illicit
discharges of sanitary wastes, which can
be directly linked to high bacterial
counts in receiving waters and can be
dangerous to public health.
Because illicit discharges to MS4s can
create severe widespread contamination
and water quality problems, several
municipalities and urban counties
performed studies to identify and
eliminate such discharges. In Michigan,
the Ann Arbor and Ypsilanti water
quality projects inspected 660
businesses, homes, and other buildings
and identified 14 percent of the
buildings as having improper storm
sewer drain connections. The program
assessment revealed that, on average, 60
percent of automobile-related
businesses, including service stations,
automobile dealerships, car washes,
body shops, and light industrial
facilities, had illicit connections to
storm sewer drains. The program
assessment also showed that a majority .
of the illicit discharges to the storm
sewer system resulted from improper
plumbing and connections, which had
been approved by the municipality
when installed (Washtenaw County
Statutory Drainage Board. 1987. Huron
River Pollution Abatement Program).
In addition, an inspection of urban
storm water outfalls draining into Inner
Grays, Washington, indicated that 32
percent of these outfalls had dry
weather flows. Of these flows, 21
percent were determined to have
pollutant levels higher than the
pollutant levels expected in typical
urban storm water runoff characterized
in the NURP study (U.S. EPA. 1993.
Investigation of Inappropriate Pollutant
Entries Into Storm Drainage Systems—
A User's Guide. EPA 600/R-92/238.
Office of Research and Development.
Washington, DC). That same document
reports a study in Toronto, Canada, that
found that 59 percent of outfalls from
the MS4 had dry-weather flows.
Chemical tests revealed that 14 percent
of these dry-weather flows were
determined to be grossly polluted.
Inflows from aging sanitary sewer
collection systems are one of the most
serious illicit discharge-related
problems. Sanitary sewer systems
frequently develop leaks and cracks,
resulting in discharges of pollutants to
receiving waters through separate storm
sewers. These pollutants include
sanitary waste and materials from sewer
main construction (e.g., asbestos
cement, brick, cast iron, vitrified clay).
Municipalities have long recognized the
reverse problem of storm water
infiltration into sanitary sewer
collection systems; this type of
infiltration often disrupts the operation
of the municipal sewage treatment
plant.
The improper disposal of materials is
another illicit discharge-related problem
that can result in contaminated
discharges from separate storm sewer
systems in two ways. First, materials
may be disposed of directly in a catch
basin or other storm water conveyance.
Second, materials disposed of on the
ground may either drain directly to a
storm sewer or be washed into a storm
sewer during a storm event. Improper
disposal of materials to street catch
basins and other storm sewer inlets
often occurs when people mistakenly
believe that disposal to such areas is an
environmentally sound practice. Part of
the confusion may occur because some
areas are served by combined sewer
systems, which are part of the sanitary
sewer collection system, and people
assume that materials discharged to a
catch basin will reach a municipal
sewage treatment plant. Materials that
are commonly disposed of improperly
include used motor oil; household toxic
materials; radiator fluids; and litter,
such as disposable cups, cans, and fast-
food packages. EPA believes that there
has been increasing success in
addressing these problems through
initiatives such as storm drain stenciling
and recycling programs, including
household hazardous waste special
collection days.
Programs that reduce illicit discharges
to separate storm sewers have improved
water quality in several municipalities.
For example, Michigan's Huron River
Pollution Abatement Program found the
elimination of illicit connections caused
a measurable improvement in the water
quality of the Washtenaw County storm
sewers and-the Huron River
(Washtenaw County Statutory Drainage
Board, 1987). In addition, an illicit
detection and remediation program in
Houston, Texas, has significantly
improved the water quality of Buffalo
Bayou. Houston estimated that illicit
flows from 132 sources had a flow rate
as high as 500 gal/min. Sources of the
illicit discharges included broken and
plugged sanitary sewer lines, illicit
connections from sanitary lines to storm
sewer lines, and floor drain connections
(Glanton, T., M.T. Garrett, and B.
Goloby. 1992. The Illicit Connection: Is
It the Problem? Wat. Env. Tech. 4(9):63-
8).
3. Construction Site Runoff
Storm water discharges generated
during construction activities can cause
an array of physical, chemical, and
biological water quality impacts.
Specifically, the biological, chemical,
and physical integrity of the waters may
become severely compromised. Water
quality impairment results, in part,
because a number of pollutants are
preferentially absorbed onto mineral or
organic particles found in fine sediment.
The interconnected process of erosion
(detachment of the soil particles),
sediment transport, and delivery is the
primary pathway for introducing key
pollutants, such as nutrients
(particularly phosphorus), metals, and
organic compounds into aquatic systems
(Novotny, V. and G. Chesters. 1989.
"Delivery of Sediment and Pollutants
from Nonpoint Sources: A Water
Quality Perspective." Journal of Soil
and Water Conservation, 44(6):568-76).
Estimates indicate that 80 percent of the
phosphorus and 73 percent of the
Kjeldahl nitrogen in streams is
associated with eroded sediment (U.S.
Department of Agriculture. 1989. "The
Second RCA Appraisal, Soil, Water and
Related Resources on Nonfederal Land
in the United States, Analysis of
Condition and Trends." Cited in
Fennessey, L.A.J., and A.R. Jarrett. 1994.
"The Dirt in a Hole: a Review of
Sedimentation Basins for Urban Areas
and Construction Sites." Journal of Soil
and Water Conservation, 49(4):317-23).
In watersheds experiencing intensive
construction activity, the localized
impacts of water quality may be severe
because of high pollutant loads,
primarily sediments. Siltation is the
largest cause of impaired water quality
in rivers and the third largest cause of
impaired water quality in lakes (U.S.
EPA, 1998). The 1996 305(b) report also
found that construction site discharges
were a source of pollution in: 6 percent
of impaired rivers; 11 percent of
impaired lakes, ponds, and reservoirs;
and 11 percent of impaired estuaries.
Introduction of coarse sediment (coarse
sand or larger) or a large amount of fine
sediment is also a concern because of
the potential of rilling lakes and
reservoirs (along with the associated
remediation costs for dredging), as well
as clogging stream channels (e.g.,
Paterson, R.G., M.I. Luger, E.J. Burby,
E.J. Kaiser, H.R. Malcolm, and A.C.
Beard. 1993. "Costs and Benefits of
Urban Erosion and Sediment Control:
North Carolina Experience."
Environmental Management 17(2):167-
78). Large inputs of coarse sediment into
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68729
stream channels initially will reduce
stream depth and minimize habitat
complexity by filling in pools (U.S.
EPA. 1991. Monitoring Guidelines to
Evaluate Effects of Forestry Activities on
Streams in the Pacific Northwest and
Alaska. EPA 910/9-91-001. Seattle,
WA). In addition, studies have shown
that stream reaches affected by
construction activities often extend well
downstream of the construction site. For
example, between 4.8 and 5.6
kilometers of stream below construction
sites in the Patuxent River watershed
were observed to be impacted by
sediment inputs (Fox, H.L. 1974.
"Effects of Urbanization on the Patuxent
River, with Special Emphasis on
Sediment Transport, Storage, and
Migration." Ph.D. dissertation. Johns
Hopkins University, Baltimore, MD. As
Cited in Klein, R.D. 1979. "Urbanization
and Stream Quality Impairment." Water
Resources Bulletin 15(4): 948-63).
A primary concern at most
construction sites is the erosion and
transport process related to fine
sediment because rain splash, rills (i.e.,
a channel small enough to be removed
by normal agricultural practices and
typically less than 1-foot deep), and
sheetwash encourage the detachment
and transport of this material to
waterbodies (Storm Water Quality Task
Force. 1993. California Storm Water
Best Management Practice Handbooks—
Construction Activity. Oakland, CA:
Blue Print Service). Construction sites
also can generate other pollutants
associated with onsite wastes, such as
sanitary wastes or concrete truck
washout.
Although streams and rivers naturally
carry sediment loads, erosion from
construction sites and runoff from
developed areas can elevate these loads
to levels well above those in
undisturbed watersheds. It is generally
acknowledged that erosion rates from
construction sites are much greater than
from almost any other land use
(Novotny, V. and H. Olem. 1994. Water
Quality: Prevention, Identification, and
Management of Diffuse Pollution. New
York: Van Nostrand Reinhold). Results
from both field studies and erosion
models indicate that erosion rates from
construction sites are typically an order
of magnitude larger than row crops and
several orders of magnitude greater than
rates from well-vegetated areas, such as
forests or pastures (USDA. 1970.
"Controlling Erosion on Construction
Sites." Agriculture Information Bulletin,
Washington, DC; Meyer, L.D., W.H.
Wischmeier, and W.H. Daniel. 1971.
"Erosion, Runoff and Revegetation of
Denuded Construction Sites."
Transactions of the ASAE 14(1):138-41;
Owen, O.S. 1975. Natural Resource
Conservation. New York: MacMillan. As
cited in Paterson, et al., 1993).
A recent review of the efficiency of
sediment basins indicated that inflows
from 12 construction sites had a mean
TSS concentration of about 4,500 mg/L
(Brown, W.E. 1997. "The Limits of
Settling." Technical Note No. 83.
Watershed Protection Techniques 2(3)).
In Virginia, suspended sediment
concentrations from housing
construction sites were measured at
500-3,000 mg/L, or about 40 times
larger than the concentrations from
already-developed urban areas (Kuo,
C.Y. 1976. "Evaluation of Sediment
Yields Due to Urban Development."
Bulletin No. 98. Virginia Water
Resources Research Center, Virginia
Polytechnic Institute and State
University, Blacksburg, VA).
Similar impacts from storm water
runoff have been reported in a number
of other studies. For example, Daniel, et
al., monitored three residential
construction sites in southeastern
Wisconsin and determined that annual
sediment yields were more than 19
times the yields from agricultural areas
(Daniel, T.C., D. McGuire, D. Stoffel,
and B. Miller. 1979. "Sediment and
Nutrient Yield from Residential
Construction Sites" Journal of
Environmental Quality 8(3):304-08).
Daniel, et al., identified total storm
runoff, followed by peak storm runoff,
as the most influential factors
controlling the sediment loadings from
residential construction sites. Daniel, et
al., also found that suspended sediment
concentrations were 15,000-20,000 mg/
L in moderate events and up to 60,000
mg/L in larger events.
Wolman and Schick (Wolman, M.G.
and A.P. Schick. 1967. "Effects of
Construction on Fluvial Sediment,
Urban and Suburban Areas of
Maryland." Water Resources Research
3(2): 451-64) studied the impacts of
development on fluvial systems in
Maryland and determined that sediment
yields in areas undergoing construction
were 1.5 to 75 times greater than
detected in natural or agricultural
catchments. The authors summarize the
potential impacts of construction on
sediment yields by stating that "the
equivalent of many decades of natural
or even agricultural erosion may take
place during a single year from areas
cleared for construction" (Wolman and
Schick, 1967).
A number of studies have examined
the effects of road construction on
erosion rates and sediment yields. A
highway construction project in West
Virginia disturbed only 4.2 percent of a
4.72-square-mile basin, but resulted in a
three-fold increase in suspended
sediment yields (Downs, S.C. and D.H.
Appel. 1986. Progress Report on the
Effects of Highway Construction on
Suspended-Sediment Discharge in the
Coal River and Trace Fork, West
Virginia, 1975-81. USGS Water
Resources Investigations Report 84-
4275. Charlestown, WV). During the
largest storm event, it was estimated
that 80 percent of the sediment in the
stream originated from the construction
site. As is often the case, the increase in
suspended sediment load could not be
detected further downstream, where the
drainage area was more than 50 times
larger (269 square miles).
Another study evaluated the effect of
290 acres of highway construction on
watersheds ranging in size from 5 to 38
square miles. Suspended sediment loads
in the smallest watershed increased by
250 percent, and the estimated sediment
yield from the construction area was 37
tons/acre during a 2-year period
(Hainly, R.A. 1980. The Effects of
Highway Construction on Sediment
Discharge into Blockhouse Creek and
Stream Valley Run, Pennsylvania. USGS
Water Resources Investigations Report
80-68. Harrisburg, PA). A more recent
study in Hawaii showed that highway
construction increased suspended
sediment loads by 56 to 76 percent in
three small (1 to 4 square mile) basins
(Hill, B.R. 1996. Streamflow and
Suspended-Sediment Loads Before and
During Highway Construction, North
Halawa, Haiku, and Kamooalii Drainage
Basins, Oahu, Hawaii, 1983-91. USGS
Water Resources Investigations Report
96-4259. Honolulu, HI). A 1970 study
determined that sediment yields from
construction areas can be as much as
500 times the levels detected in rural
areas (National Association of Counties
Research Foundation. 1970. Urban Soil
Erosion and Sediment Control. Water
Pollution Control Research Series,
Program #15030 DTL. Federal Water
Quality Administration, U.S.
Department of Interior. Washington, DC)
Yorke and Herb (Yorke, T.H., and W.J.
Herb. 1978. Effects of Urbanization on
Streamflow and Sediment Transport in
the Rock Creek and Anacostia River
Basins, Montgomery County, Maryland,
1962-74. USGS Professional Paper 1003,
Washington, DC) evaluated nine
subbasins in the Maryland portion of
the Anacostia watershed for more than
a decade in an effort to define the
impacts of changing land use/land cover
on sediment in runoff. Average annual
suspended sediment yields for
construction sites ranged from 7 to 100
tons/acre. Storm water discharges from
construction sites that occur when the
land area is disturbed (and prior to
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68730 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
surface stabilization) can significantly
impact designated uses. Examples of
designated uses include public water
supply, recreation, and propagation of
fish and wildlife. The siltation process
described previously can threaten all
three designated uses by (1} depositing
high concentrations of pollutants in
public water supplies; (2) decreasing the
depth of a waterbody, which can reduce
the volume of a reservoir or result in
limited use of a water body by boaters,
swimmers, and other recreational
enthusiasts; and (3) directly impairing
the habitat of fish and other aquatic
species, which can limit their ability to
reproduce.
Excess sediment can cause a number
of other problems for waterbodies. It is
associated with increased turbidity and
reduced light penetration in the water
column, as well as more long-term
effects associated with habitat
destruction and increased difficulty in
filtering drinking water. Numerous
studies have examined the effect that
excess sediment has on aquatic
ecosystems. For example, sediment from
road construction activity in Northern
Virginia reduced aquatic insect and fish
communities by up to 85 percent and 40
percent, respectively (Reed, J.R. 1997.
"Stream Community Responses to Road
Construction Sediments." Bulletin No.
97. Virginia Water Resources Research
Center, Virginia Polytechnic Institute,
Blacksburg, VA. As cited in Klein, R.D.
1990. A Survey of Quality of Erosion
and Sediment Control and Storm Water
Management in the Chesapeake Bay
Watershed. Annapolis, MD: Chesapeake
Bay Foundation). Other studies have
shown that fine sediment (fine sand or
smaller) adversely affects aquatic
ecosystems by reducing light
penetration, impeding sight-feeding,
smothering benthic organisms, abrading
gills and other sensitive structures,
reducing habitat by clogging interstitial
spaces within a streambed, and
reducing the intergravel dissolved
oxygen by reducing the permeability of
the bed material (Everest, F.H., J.C.
Beschta, K.V. Scrivener, J.R. Koski, J.R.
Sedell, and C.J. Cederholm. 1987. "Fine
Sediment and Salmonid Production: A
Paradox." Streamside Management:
Forestry and Fishery Interactions,
Contract No. 57, Institute of Forest
Resources, University of Washington,
Seattle, WA). For example, 4.8 and 5.6
kilometers of stream below construction
sites in the Patuxent River watershed in
Maryland were found to have fine
sediment amounts 15 times greater than
normal (Fox, 1974. As cited in Klein,
1979). Benthic organisms in the
streambed can be smothered by
sediment deposits, causing changes in
aquatic flora and fauna, such as fish
species composition (Wolman and
Schick, 1967). In addition, the primary
cause of coral reef degradation in coastal
areas is attributed to land disturbances
and dredging activities due to urban
development (Rogers, C.S. 1990.
"Responses of Coral Reefs and Reef
Organizations to Sedimentation."
Marine Ecology Progress Series, 62:185-
202).
EPA believes that the water quality
impact from small construction sites is
as high as or higher than the impact
from larger sites on a per acre basis. The
concentration of pollutants in the runoff
from smaller sites is similar to the
concentrations in the runoff from larger
sites. The proportion of sediment that
makes it from the construction site to
surface waters is likely the same for
larger and smaller construction sites in
urban areas because the runoff from
either site is usually delivered directly
to the storm drain network where there
is no opportunity for the sediment to be
filtered out.
The expected contribution of total
sediment yields from small sites
depends, in part, on the extent to which
erosion and sedimentation controls are
being applied. Because current storm
water regulations are more likely to
require erosion and sedimentation
controls on larger sites in urban areas,
smaller construction sites that lack such
programs are likely to contribute a
disproportionate amount of the total
sediment from construction activities
(MacDonald, L.H. 1997. Technical
Justification for Regulating Construction
Sites 1—5 Acres in Size. Unpublished
report submitted to U.S. EPA,
Washington, DC). Smaller construction
sites are less likely to have an effective
plan to control erosion and
sedimentation, are less likely to
properly implement and maintain their
plans, and are less likely to be inspected
(Brown, W. and D. Caraco. 1997.
Controlling Storm Water Runoff
Discharges from Small Construction
Sites: A National Review. Submitted to
Office of Wastewater Management, U.S.
EPA, Washington, DC., by the Center for
Watershed Protection, Silver Spring,
MD). The proportion of sediment that
makes it from the construction site to
surface waters is likely the same for
larger and smaller construction sites in
urban areas because the runoff from
either site is usually delivered directly
to the storm drain network, where there
is no opportunity for the sediment to be
filtered out.
To confirm its belief that sediment
yields from small sites are as high as or
higher than the 20 to 150 tons/acre/year
measured from larger sites, EPA gave a
grant to the Dane County, Wisconsin
Land Conservation Department, in
cooperation with the USGS, to evaluate
sediment runoff from two small
construction sites. The first was a 0.34
acre residential lot and the second was
a 1.72 acre commercial office
development. Runoff from the sites was
channeled to a single discharge point for
monitoring. Each site was monitored
before, during, and after construction.
The Dane County study found that
total solids concentrations from these
small sites are similar to total solids
concentrations from larger construction
sites. Results show that for both of the
study sites, total solids and suspended
solids concentrations were significantly
higher during construction than either
before or after construction. For
example, preconstruction total solids
concentrations averaged 642 mg/L
during the period when ryegrass was
established, active construction total
solids concentrations averaged 2,788
mg/L, and post-construction total solids
concentrations averaged 132 mg/L (on a
pollutant load basis, this equaled 7.4 Ibs
preconstruction, 35 Ibs during
construction, and 0.6 Ibs post-
construction for total solids). While this
site was not properly stabilized before
construction, after construction was
complete and the site was stabilized,
post-construction concentrations were
more than 20 times less than during
construction. The results were even
more dramatic for the commercial site.
The commercial site had one
preconstruction event, which resulted
in total solids concentrations of 138 mg/
L, while active construction averaged
more than 15,000 mg/L and post-
construction averaged only 200 mg/L
(on a pollutant load basis, this equaled
0.3 Ibs preconstruction, 490 Ibs during
construction, and 13.4 Ibs post-
construction for total solids). The active
construction period resulted in more
than 75 times more sediment than either
before or after construction (Owens,
D.W., P. Jopke, D.W. Hall, J. Balousek
and A. Roa. 1999. "Soil Erosion from
Small Construction Sites." Draft USGS
Fact Sheet. USGS and Dane County
Land Conservation Department, WI).
The total solids concentrations from
these small sites in Wisconsin are
similar to total solids concentrations
from larger construction sites. For
example, a study evaluating the effects
of highway construction in West
Virginia found that a small storm
produced a sediment concentration of
7,520 mg/L (Downs and Appel, 1986).
One important aspect of small
construction sites is the number of small
sites relative to larger construction sites
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68731
and total land area within the
watershed. Brown and Caraco surveyed
219 local jurisdictions to assess erosion
and sediment control (ESC) programs.
Seventy respondents provided data on
the number of ESC permits for
construction sites smaller than 5 acres.
In 27 cases (38 percent of the
respondents), more than three-quarters
of the permits were for sites smaller
than 5 acres; in another 18 cases (26
percent), more than half of the permits
were for sites smaller than 5 acres.
In addition, data on the total acreage
disturbed by smaller construction sites
have been collected recently in two
States (MacDonald, 1997). The most
recent and complete data set is the
listing of the disturbed area for each of
the 3,831 construction sites permitted in
North Carolina for 1994-1995 and
1995-1996. Nearly 61 percent of the
sites that were 1 acre or larger were
between 1.0 and 4.9 acres in size. This
proportion was consistent between
years. Data showed that this range of
sites accounted for 18 percent of the
total area disturbed by construction. The
values showed very little variation
between the 2 years of data. The total
disturbed area for all sites over this 2-
year period was nearly 33,000 acres, or
about 0.1 percent of the total area of
North Carolina.
EPA estimates that construction sites
disturbing greater than 5 acres disturb
2.1-million acres of land (78.1 percent of
the total) while sites disturbing between
1 and 5 acres of land disturb 0.5-million
acres of land (19.4 percent). The
remaining sites on less than 1 acres of
land disturb 0.07-million acres of land
(only 2.5 percent of the total). Given the
high erosion rates associated with most
construction sites, small construction
sites can be a significant source of water
quality impairment, particularly in
small watersheds that are undergoing
rapid development. Exempting sites
under 1 acre will exclude only about 2.5
percent of acreage from program
coverage, but will exclude a far higher
number of sites, approximately 25
percent.
Several studies have determined that
the most effective construction runoff
control programs rely on local plan
review and field enforcement (Paterson,
R. G. 1994. "Construction Practices: the
Good, the Bad, and the Ugly."
Watershed Protection Techniques 1(3)).
In his review, Paterson suggests that,
given the critical importance of field
implementation of erosion and sediment
control programs and the apparent
shortcomings that exist, much more
focus should be given to plan
implementation.
Several commenters disputed the data
presented in the proposed rule for storm.
water discharges from smaller
. construction sites. One commenter
stated that EPA has not adequately
explained the basis for permitting
construction activity down to 1
disturbed acre. Another commenter
stated that EPA did not present
sufficient data on water quality impacts
from construction sites disturbing less
than 5 acres.
EPA believes that the data presented
above sufficiently support nationwide
designation of storm water discharges
from construction activity disturbing
more than 1 acre. Based on total
disturbed land area within a watershed,
the cumulative effects of numerous
small construction sites can have
impacts similar to those of larger sites
in a particular area. In addition, waivers
for storm water discharges from smaller
construction activity will exclude sites
not expected to impair water quality.
EPA will continue to collect water
quality data on construction site storm
water runoff.
C. Statutory Background
In 1972, Congress enacted the CWA to
prohibit the discharge of any pollutant
to waters of the United States from a
point source unless the discharge is
authorized by an NPDES permit.
Congress added CWA section 402(p) in
1987 to require implementation of a
comprehensive program for addressing
storm water discharges. Section
402(p)(l) required EPA or NPDES-
authonzed States or Tribes to issue
NI'DES permits for the following five
classes of storm water discharges
composed entirely of storm water
{"storm water discharges") specifically
listed under section 402(p)(2):
(A) a discharge subject to an NPDES
permit before February 4, 1987
(B) a discharge associated with
industrial activity
(C) a discharge from a municipal
separate storm sewer system serving a
population of 250,000 or more
(D) a discharge from a municipal
separate storm sewer system serving a
population of 100,000 or more but less
than 250,000
(E) a discharge that an NPDES
permitting authority determines to be
contributing to a violation of a water
quality standard or a significant
contributor of pollutants to the waters of
the United States.
Section 402(p)(3)(A) requires storm
water discharges associated with
industrial activity to meet all applicable
provisions of section 402 and section
301 of the CWA, including technology-
based requirements and any more;
stringent requirements necessary to
meet water quality standards. Section
402(p)(3)(B) establishes NPDES permit
standards for discharges from municipal
separate storm sewer systems, or MS4s.
NPDES permits for discharges from
MS4s (1) may be issued on a system or
jurisdiction-wide basis, (2) must include
a requirement to effectively prohibit
non-storm water discharges into the
storm sewers, and (3) must require
controls to reduce pollutant discharges
to the maximum extent practicable,
including best management practices,
and other provisions as the
Administrator or the States determine to
be appropriate for the control of such
pollutants. At this time, EPA determines
that water quality-based controls,
implemented through the iterative
processes described today are
appropriate for the control of such
pollutants and will result in reasonable
further progress towards attainment of
water quality standards. See sections
ILL and II.H.3 of the preamble.
In CWA section 402(p)(4), Congress
established statutory deadlines for the
initial steps in implementing the NPDES
program for storm water discharges.
This section required development of
NPDES permit application regulations,
submission of NPDES permit
applications, issuance of NPDES
permits for sources identified in section
402(p)(2), and compliance with NPDES
permit conditions. In addition, this
section required industrial facilities and
large MS4s to submit NPDES permit
applications for storm water discharges
by February 4, 1990. Medium MS4s
were to submit NPDES permit
applications by February 4, 1992. EPA
and authorized NPDES States were
prohibited from requiring an NPDES
permit for any other storm water
discharges until October 1,1994.
Section 402(p)(5) required EPA to
conduct certain studies and submit a
report to Congress. This requirement is
discussed in the following section.
Section 402(p)(6) requires EPA, in
consultation with States and local
officials, to issue regulations for the
designation of additional storm water
discharges to be regulated to protect
water quality. It also requires EPA to
extend the existing storm water program
to regulate newly designated sources. At
a minimum, the extension must
establish (1) priorities, (2) requirements
for State storm water management
programs, and (3) expeditious
deadlines. Section 402(p)(6) specifies
that the program may include
performance standards, guidelines,
guidance, and management practices
and treatment requirements, as
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68732 Federal Register/Vol. 64, No. 235 /Wednesday, December 8, 1999/Rules and Regulations
appropriate. Today's rule implements
this section.
D. EPA's Reports to Congress
Under CWA section 402(p)(5), EPA, in
consultation with the States, was
required to conduct a study. The study
was to identify unregulated sources of
storm water discharges, determine the
nature and extent of pollutants in such
discharges, and establish procedures
and methods to mitigate the impacts of
such discharges on water quality.
Section 402(p)(5) also required EPA to
report the results of the first two
components of that study to Congress by
October 1,1988, and the final report by
October 1, 1989.
In March 1995, EPA submitted to
Congress a report that reviewed and
analyzed the nature of storm water
discharges from municipal and
industrialacilities that were not already
regulated under the initial NPDES
regulations for storm water (U.S.
Environmental Protection Agency,
Office of Water. 1995. Storm Water
Discharges Potentially Addressed by
Phase II of the National Pollutant
Discharge Elimination System Storm
Water Program: Report to Congress.
Washington, D.C. EPA 833-K-94-002)
("Report"). The Report also analyzed
associated pollutant loadings and water
quality impacts from these unregulated
sources. Based on identification of
unregulated municipal sources and
analysis of information on impacts of
storm water discharges from municipal
sources, the Report recommended that
the NPDES program for storm water
focus on the 405 "urbanized areas"
identified by the Bureau of the Census.
The Report further found that a number
of discharges from unregulated
industrial facilities warranted further
investigation to determine the need for
regulation. It classified these
unregulated industrial discharges in two
groups: Group A and Group B. Group A
comprised sources that may be
considered a high priority for inclusion
in the NPDES program for storm water
because discharges from these sources
are similar or identical to already
regulated sources. These "look alike"
storm water discharge sources were not
covered in the initial NPDES regulations
for storm water due to the language used
to define "associated with industrial
activity." In the initial regulations for
storm water, "industrial activity" is
identified using Standard Industrial
Classification (SIC) codes. The use of
SIC codes led to incomplete
categorization of industrial activities
with discharges that needed to be
regulated to protect water quality.
Group B consisted of 18 industrial
sectors, which included sources that
EPA expected to contribute to storm
water contamination due to the
activities conducted and pollutants
anticipated onsite (e.g., vehicle
maintenance, machinery and electrical
repair, and intensive agricultural
activities).
EPA reported on the latter component
of the section 402(p)(5) study via
President Clinton's Clean Water
Initiative, which was released on
February 1, 1994 (U.S. Environmental
Protection Agency, Office of Water.
1994. President Clinton's Clean Water
Initiative. Washington, D.C. EPA 800-R—
94-001) ("Initiative"). The Initiative
addressed a number of issues associated
with NPDES requirements for storm
water discharges and proposed (1)
establishing a phased compliance with
a water quality standards approach for
discharges from municipal separate
storm sewer systems with priority on
controlling discharges from municipal
growth and development areas, (2)
clarifying that the maximum extent
practicable standard should be applied
in a site-specific, flexible manner, taking
into account cost considerations as well
as water quality effects, (3) providing an
exemption from the NPDES program for
storm water discharges from industrial
facilities with no activities or significant
materials exposed to storm water, (4)
providing extensions to the statutory
deadlines to complete implementation
of the NPDES program for the storm
water program, (5) targeting urbanized
areas for the requirements in the NPDES
program for storm water, and (6)
providing control of discharges from
inactive and abandoned mines located
on Federal lands in a more targeted,
flexible manner. Additionally, prior to
promulgation of today's rule, section
431 of the Agency's Appropriation Act
for FY 2000 (Departments of Veterans
Affairs and Housing and Urban
Development and Independent Agencies
Appropriations Act of 2000, Public Law
106-74, section 432 (1999)) directed
EPA to report on certain matters to be
covered in today's rule. That report
supplements the study required by
CWA Section 402(p)(5). EPA is
publishing the availability of that report
elsewhere in this issue of the Federal
Register.
Several commenters asserted that the
Report to Congress is an inadequate
basis for the designation and regulation
of sources covered under today's final
rule, specifically the nationwide
designation of small municipal separate
storm sewer systems within urbanized
areas and construction activities
disturbing between one and five acres.
EPA believes that it has developed an
adequate record for today's regulation
both through the Report to Congress and
the Clean Water Initiative and through
more recent activities, including the
FACA Subcommittee process, regulatory
notices and evaluation of comments,
and recent research and analysis. EPA
does not interpret the congressional
reporting requirements of CWA section
402(p)(5) to be the sole basis for
determining sources to be regulated
under today's final rule.
EPA's decision to designate on a
national basis small MS4s in urbanized
areas is supported by studies that
clearly show a direct correlation
between urbanization and adverse water
quality impacts from storm water
discharges. (Schueler, T. 1987.
Controlling Urban Runoff: A Practical
Manual for Planning » Designing Urban
BMPs. Metropolitan Washington
Council of Governments). "Urbanized
areas"—within which all small MS4s
would be covered—represent the most
intensely developed and dense areas of
the Nation. They constitute only two
percent of the land area but 63 percent
of the total population. See section I.B.I,
Urban Development, above, for studies
and assessments of the link between
urban development and storm water
impacts on water resources.
Commenters argued that the Report to
Congress does not address storm water
discharges from construction sites. They
further argued that the designation of
small construction sites per today's final
rule goes beyond the President's 1994
Initiative because the Initiative only
recommends requiring municipalities to
implement a storm water management
program to control unregulated storm
water sources, "including discharges
from construction of less than 5 acres,
which are part of growth, development
and significant redevelopment
activities." They point out that the
Initiative provides that unregulated
storm water discharges not addressed
through a municipal program would not
be covered by the NPDES program.
Commenters assert that EPA has not
developed a record independent of its
section 402(p)(5) studies that
demonstrates the necessity of regulating
under a separate NPDES permit storm
water discharges from smaller
construction sites "to protect water
quality." EPA disagrees.
EPA evaluated the nature and extent
of pollutants from construction site
sources in a process that was separate
and distinct from the development of
the Report to Congress. Today's decision
to regulate certain storm water
discharges from construction sites
disturbing less than 5 acres arose in part
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68733
out of the 9th Circuit remand in NRDC
v. EPA, 966 F.2d 1292 (9th Cir. 1992].
In that case, the court remanded
portions of the Phase I storm water
regulations related to discharges from
construction sites. Those regulations
define "storm water discharges
associated with industrial activity" to
include only those storm water
discharges from construction sites
disturbing 5 acres or more of total land
area (see 40 CFR 122.26(b)(14)(x)). In its
decision, the court concluded that the 5-
acre threshold was improper because
the Agency had failed to identify
information "to support its perception
that construction activities on less than
5 acres are non-industrial in nature"
(966 F.2d at 1306). The court remanded
the below 5 acre exemption to EPA for
further proceedings (966 F.2d at 1310).
In a Federal Register notice issued on
December 18,1992, EPA noted that it
did not believe that the Court's decision
had the effect of automatically
subjecting small construction sites to
the existing application requirements
and deadlines. EPA believed that
additional notice and comment were
necessary to clarify the status of these
sites. The information received during
the notice and comment process and
additional research, as discussed in
section I.B.3 Construction Site Runoff,
formed the basis for the designation of
construction activity disturbing between
one and five acres on a nationwide
basis. EPA's objectives in today's
proposal include an effort to (1) address
the 9th Circuit remand, (2) address
water quality concerns associated with
construction activities that disturb less
than 5 acres of land, and (3) balance
conflicting recommendations and
concerns of stakeholders.
One commenter noted that EPA's
proposal would fail to regulate
industrial facilities identified as Group
A and Group B in the March 1995
Report to Congress. EPA is relying on
the analysis in the Report, which
provided that the recommendation for
coverage was meant as guidance and
was not intended to be an identification
of specific categories that must be
regulated under Section 402(p)(6).
Report to Congress, p. 4-1. The Report
recognized the existence of limited data
on which to base loadings estimates to
support the nationwide designation of
individual or categories of sources.
Report to Congress, p. 4-44.
Furthermore, during FACA
Subcommittee discussion, EPA
continued to urge stakeholders to
provide further data relating to
industrial and commercial storm water
sources, which EPA did not receive.
EPA concluded that, due to insufficient
data, these sources were not appropriate
for nationwide designation at this time.
E. Industrial Facilities Owned or
Operated by Small Municipalities
Congress granted extensions to the
NPDES permit application process for
selected classes of storm water
discharges associated with industrial
activity. On December 18,1991,
Congress enacted the Intermodal
Surface Transportation Efficiency Act
(ISTEA), which postponed NPDES
permit application deadlines for most
storm water discharges associated with
industrial activity at facilities that are
owned or operated by small
municipalities. EPA and States
authorized to administer the NPDES
program could not require any
municipality with a population of less
than 100,000 to apply for or obtain an
NPDES permit for any storm water
discharge associated with industrial
activity prior to October 1,1992, except
for storm water discharges from airports,
power plants, or uncontrolled sanitary
landfills. See 40 CFR 122.26(e)(l); 57 FR
11524, April 2, 1992 (reservation of
NPDES application deadlines for ISTEA
facilities].
The facilities exempted by ISTEA
discharge storm water in the same
manner (and are expected to use
identical processes and materials) as the
industrial facilities regulated under the
1990 Phase I regulations. Accordingly,
these facilities pose similar water
quality problems. The extended
moratorium for these facilities was
necessary to allow municipalities
additional time to comply with NPDES
requirements. The proposal for today's
rule would have maintained the existing
deadline for seeking coverage under an
NPDES permit (August 7, 2001).
Today's rule changes the permit
application deadline for such
municipally owned or operated
facilities discharging industrial storm
water to make it consistent with the
application date for small regulated
MS4s. Because EPA missed its March
1999 deadline for promulgating today's
rule, and the deadline for MS4s to
submit permit applications has been
extended to three years and 90 days
from the date of this notice, the deadline
for permitting ISTEA sources has been
similarly extended. The permitting of
these sources is discussed below in
section "II.I.3. ISTEA Sources."
F. Related Nonpoint Source Programs
Today's rule addresses point source
discharges of storm water runoff and
non-storm water discharges into MS4s.
Many of these sources have been
addressed by nonpoint source control
programs, which are described briefly
below.
In 1987, section 319 was added to the
CWA to provide a framework for
funding State and local efforts to
address pollutants from nonpoint
sources not addressed by the NPDES
program. To obtain funding, States are
required to submit Nonpoint Source
Assessment Reports identifying State
waters that, without additional control
of nonpoint sources of pollution, could
not reasonably be expected to attain or
maintain applicable water quality
standards or other goals and
requirements of the CWA. States are
also required to prepare and submit for
EPA approval a statewide Nonpoint
Source Management Program for
controlling nonpoint source water
pollution to navigable waters within the
State and improving the quality of such
waters. State program submittals must
identify specific best management
practices (BMPs) and measures that the
State proposes to implement in the first
four years after program submission to
reduce pollutant loadings from
identified nonpoint sources to levels
required to achieve the stated water
quality objectives.
State nonpoint source programs
funded under section 319 can include
both regulatory and nonregulatory State
and local approaches. Section
319(b)(2)(B) specifies that a combination
of "nonregulatory or regulatory
programs for enforcement, technical
assistance, financial assistance,
education, training, technology transfer,
and demonstration projects' may be
used, as necessary, to achieve
implementation of the BMPs or
measures identified in the section 319
submittals.
Section 6217 of the Coastal Zone Act
Reauthorization Amendments (CZARA)
of 1990 provides that States with
approved coastal zone management
programs must develop coastal
nonpoint pollution control programs
and submit them to EPA and the
National Oceanic and Atmospheric
Administration (NOAA) for approval.
Failure to submit an approvable
program will result in a reduction of
Federal grants under both the Coastal
Zone Management Act and section 319
of the CWA.
State coastal nonpoint pollution
control programs under CZARA must
include enforceable policies and
mechanisms that ensure
implementation of the management
measures throughout the coastal
management area. EPA issued Guidance
Specifying Management Measures for
Sources of Nonpoint Pollution in
Coastal Waters under section 6217(g) in
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68734 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
January 1993. The guidance identifies
management measures for five major
categories of nonpoint source pollution.
The management measures reflect the •
greatest degree of pollutant reduction
that is economically achievable for each
of the listed sources. These management
measures provide reference standards
for the States to use in developing or
refining their coastal nonpoint
programs. A few management measures,
however, contain quantitative standards
that specify pollutant loading
reductions. For example, the New
Development Management Measure,
which is applicable to construction in
urban areas, requires (1) that by design
or performance the average annual total
suspended solid loadings be reduced by
80 percent and (2) to the extent
practicable, that the pre-development
peak runoff rate and average volume be
maintained.
EPA and NOAA published Coastal
Nonpoint Pollution Control Program:
Program Development and Approval
Guidance (1993]. The document
clarifies that States generally must
implement management measures for
each source category identified in the
EPA guidance developed under section
6217(g). Coastal Nonpoint Pollution
Control Programs are not required to
address sources that are clearly
regulated under the NPDES program as
point source discharges. Specifically,
such programs would not need to
address small MS4s and construction
sites covered under NPDES storm water
permits (both general and individual).
II. Description of Program
A. Overview
1. Objectives EPA Seeks To Achieve in
Today's Rule
EPA seeks to achieve several
objectives in today's final rule. First,
EPA is implementing the requirement
under CWA section 402(p)(6) to provide
a comprehensive storm water program
that designates and controls additional
sources of storm water discharges to
protect water quality. Second, EPA is
addressing storm water discharges from
the activities exempted under the 1990
storm water permit application
regulations that were remanded by the
Ninth Circuit Court of Appeals in NRDC
v. EPA, 966 F.2d 1292 (9th Circuit,
1992). These are construction activities
disturbing less than 5 acres and so-
called "light" industrial activities not
exposed to storm water (see discussion
of "no exposure" below). Third, EPA is
providing coverage for the so-called
"donut holes" created by the existing
NPDES storm water program. Donut
holes are geographic gaps in the NPDES
storm water program's regulatory
scheme. They are MS4s located within
areas covered by the existing NPDES
storm water program, but not currently
addressed by the storm water program
because it is based on political
jurisdictions. Finally, EPA also is trying
to promote watershed planning as a
framework for implementing water
quality programs where possible.
Although EPA had options for
different approaches (see alternatives
discussed in the January 9,1998,
proposed regulation), EPA believes it
can best achieve its objectives through
flexible innovations within the
framework of the NPDES program.
Unlike the interim section 402(p)(6)
storm water regulations EPA
promulgated in 1995, EPA no longer
designates all of the unregulated storm
water discharges for nationwide
coverage under the NPDES program for
storm water. The framework for today's
final rule is one that balances automatic
designation on a nationwide basis and
locally-based designation and waivers.
Nationwide designation applies to those
classes or categories of storm water
discharges that EPA believes present a
high likelihood of having adverse water
quality impacts, regardless of location.
Specifically, today's rule designates
discharges from small MS4s located in
urbanized areas and storm water
discharges from construction activities
that result in land disturbance equal to
or greater than one and less than five
acres. As noted under Section I.E.,
Water Quality Concerns/Environmental
Impact Studies and Assessments, these
two categories of storm water sources,
when unregulated, tend to cause
significant adverse water quality
impacts. Additional sources are not
covered on a nationwide basis either
because EPA currently lacks
information indicating a consistent
potential for adverse water quality
impact or because EPA believes that the
likelihood of adverse impacts on water
quality is low, with some localized
exceptions. Additional individual
sources or categories of storm water
discharges could, however, be covered
under the program through a local
designation process. A permitting
authority may designate additional
small MS4s after developing designation
criteria and applying those criteria to
small MS4s located outside of an
urbanized area, in particular those with
a population of 10,000 or more and a
population density of at least 1,000.
Exhibit 1 illustrates the designation
framework for today's final rule.
BILLING CODE 6560-50-P
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68735
EXHIBIT 1.—PHASE II SOURCE DECISIONS
-WATER QUALITY IMPACT OF SOURCES-
LOW LIKELIHOOD/
INSUFFICIENT INFORMATION
NOT AUTOMATICALLY
DESIGNATED BY RULE
Small MS4s located outside Urbanized Areas.
Construction activity that results in the land
disturbance of less than 1 acre.
Non-Phase I industrial and commercial sources.
BUT DESIGNATED BY
PERMITTING AUTHORITY IF
A small MS4 meets the designation criteria. The
permitting authorities are required to develop
and apply designation criteria to, at a minimum,
those small MS4s located in an area with a
population of at least 10,000 and a population
density of at least 1,000.
A small MS4 is contributing substantially to the
pollutant loadings of a physically interconnected
MS4 that is regulated by the NPDES storm
water program.
A TMDL* defines a need to cover small MS4s,
construction activity, and industrial/commercial
sources not currently regulated.
It is determined that the storm water discharge
from a small MS4, construction site or
industrial/commercial facility contributes to a
violation of a water quality standard or is a
significant contributor of pollutants to waters of
the United States.
National
Assessment
Local
Water Quality
Assessment
HIGH LIKELIHOOD
AUTOMATICALLY
DESIGNATED BY RULE
All small MS4s located inside Urbanized
Areas.
Construction activity that results in the land
disturbance of greater than or equal to 1 acre
and less than 5 acres.
BUT WAIVERS PROVIDED FOR
Regulated small MS4s that serve a population
of less than 1,000, are not contributing
substantially to the pollutant loadings of a
physically interconnected MS4, and if
discharging to an impaired water body, storm
water controls not needed based on a TMDL
that addresses the pollutants of concern.
Regulated small MS4s that serve a
population under 10,000, permitting
authority has evaluated all waters that
received a discharge from the MS4, storm
water controls are not needed based on a
TMDL for those waters, and future
discharges from the MS4 are evaluated.
Construction activity disturbing between 1
and 5 acres where:
(1) Activity occurs during a negligible
rainfall period (rainfall erosivity factor
of less than 5), or
(2) A TMDL or equivalent analysis
addresses the pollutants of concern
leading to a determination that storm
water controls are not necessary for
construction activity.
•EPA will continue to require States to comply with their Total Maximum Daily Load (TMDL) implementation schedules.
BILLING CODE 6560-50-C
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68736 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
The designation framework for
today's final rule provides a significant
degree of flexibility. The proposed
provisions for nationwide designation of
storm water discharges from
construction and from small MS4s in
urbanized areas allowed for a waiver of
applicable requirements based on
appropriate water quality conditions.
Today's final rule expands and
simplifies those waivers.
The permitting authority may waive
the requirement for a permit for any
small MS4 serving a jurisdiction with a
population of less than 1,000 unless
storm water controls are needed because
the MS4 is contributing to a water
quality impairment. The permitting
authority may also waive permit
coverage for MS4s serving a jurisdiction
with a population of less than 10,000 if
all waters that receive a discharge from
the MS4 have been evaluated and
discharges from the MS4 do not
significantly contribute to a water
quality impairment or have the potential
to cause an impairment. Today's rule
also allows States with a watershed
permitting approach to phase in
coverage for MS4s in jurisdictions with
populations under 10,000.
Water quality conditions are also the
basis for a waiver of requirements for
storm water discharges from
construction activities disturbing
between one and five acres. For these
small construction sources, the rule
provides significant flexibility for
waiving otherwise applicable regulatory
requirements where a permitting
authority determines, based on water
quality and watershed considerations,
that storm water discharge controls are
not needed.
Coverage can be extended to
municipal and construction sources
outside the nationwide designated
classes or categories based on watershed
and case-by-case assessments. For the
municipal storm water program, today's
rule provides broad discretion to NPDES
permitting authorities to develop and
implement criteria for designating storm
water discharges from small MS4s
outside of urbanized areas. Other storm
water discharges from unregulated
industrial, commercial, and residential
sources will not be subject to the NPDES
permit requirements unless a permitting
authority determines on a case-by-case
basis (or on a categorical basis within
identified geographic areas such as a
State or watershed) that regulatory
controls are needed to protect water
quality. EPA believes that the flexibility
provided in today's rule facilitates
watershed planning.
2. General Requirements for Regulated
Entities Under Today's Rule
As previously noted, today's final rule
defines additional classes and categories
of storm water discharges for coverage
under the NPDES program. These
designated dischargers are required to
seek coverage under an NPDES permit.
Furthermore, all NPDES-authorized
States and Tribes are required to
implement these provisions and make
any necessary amendments to current
State and Tribal NPDES regulations to
ensure consistency with today's final
rule. EPA remains the NPDES
permitting authority for jurisdictions
without NPDES authorization.
Today's final rule includes some new
requirements for NPDES permitting
authorities implementing the CWA
section 402(p)(6) program. EPA has
made a significant effort to build
flexibility into the program while
attempting to maintain an appropriate
level of national consistency. Permitting
authorities must ensure that NPDES
permits issued to MS4s include the
minimum control measures established
under the program. Permitting
authorities also have the ability to make
numerous decisions including who is
regulated under the program, i.e., case-
by-case designations and waivers, and
how responsibilities should be allocated
between regulated entities.
Today's final rule extends the NPDES
program to include discharges from the
following: small MS4s within urbanized
areas (with the exception of systems
waived from the requirements by the
NPDES permitting authority); other
small MS4s meeting designation criteria
to be established by the permitting
authority; and any remaining MS4 that
contributes substantially to the storm
water pollutant loadings of a physically
interconnected MS4 already subject to
regulation under the NPDES program.
Small MS4s include urban storm sewer
systems owned by Tribes, States,
political subdivisions of States, as well
as the United States, and other systems
located within an urbanized area that
fall within the definition of an MS4.
These include, for example, State
departments of transportation (DOTs),
public universities, and federal military
bases.
Today's final rule requires all
regulated small MS4s to develop and
implement a storm water management
program. Program components include,
at a minimum, 6 minimum measures to
address: public education and outreach;
public involvement; illicit discharge
detection and elimination; construction
site runoff control; post-construction
storm water management in new
development and redevelopment; and
pollution prevention and good
housekeeping of municipal operations.
These program components will be
implemented through NPDES permits.
A regulated small MS4 is required to
submit to the NPDES permitting
authority, either in its notice of intent
(NOI) or individual permit application,
the BMPs to be implemented and the
measurable goals for each of the
minimum control measures listed
above.
The rule addresses all storm water
discharges from construction site
activities involving clearing, grading
and excavating land equal to or greater
than 1 acre and less than 5 acres, unless
requirements are otherwise waived by
the NPDES permitting authority.
Discharges from such sites, as well as
construction sites disturbing less than 1
acre of land that are designated by the
permitting authority, are required to
implement requirements set forth in the
NPDES permit, which may reference the
requirements of a qualifying local
program issued to cover such
discharges.
The rule also addresses certain other
sources regulated under the existing
NPDES program for storm water. For
municipally-owned industrial sources
required to be regulated under the
existing NPDES storm water program
but exempted from immediate
compliance by the Intermodal Surface
Transportation Act of 1991 (ISTEA), the
rule revises the existing deadline for
seeking coverage under an NPDES
permit (August 7, 2001) to make it
consistent with the application date for
small regulated MS4s. (See section 1.3.
below.) The rule also provides relief
from NPDES storm water permitting
requirements for industrial sources with
no exposure of industrial materials and
activities to storm water.
3. Integration of Today's Rule With the
Existing Storm Water Program
In developing an approach for today's
final rule, numerous early interested
stakeholders encouraged EPA to seek
opportunities to integrate, where
possible, the proposed Phase II
requirements with existing Phase I
requirements, thus facilitating a unified
storm water discharge control program.
EPA believes that this objective is met
by using the NPDES framework. This
framework is already applied to
regulated storm water discharge sources
and is extended to those sources
designated under today's rule. This
approach facilitates program
consistency, public access to
information, and program oversight.
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EPA believes that today's final rule
provides consistency in terms of
program coverage and requirements for
existing and newly designated sources.
For example, the rule includes most of
the municipal donut holes, those MS4s
located in incorporated places,
townships or towns with a population
under 100,000 that are within Phase I
counties. These MS4s are not addressed
by the existing NPDES storm water
program while MS4s in the surrounding
county are currently addressed. In
addition, the minimum control
measures required in today's rule for
regulated small MS4s are very similar to
a number of the permit requirements for
medium and large MS4s under the
existing storm water program. Following
today's rule, permit requirements for all
regulated MS4s (both those under the
existing program and those under
today's rule) will require
implementation of BMPs. Furthermore,
with regard to the development of
NPDES permits to protect water quality,
EPA intends to apply the August 1,
1996, Interim Permitting Approach for
Water Quality-Based Effluent
Limitations in Storm Water Permits
(hereinafter, "Interim Permitting
Approach") (see Section II.L.l. for
further description) to all MS4s covered
by the NPDES program.
EPA is applying NPDES permit
requirements to construction sites below
5 acres that are similar to the existing
requirements for those above 5 acres
and above. In addition, today's rule
allows compliance with qualifying
local, Tribal, or State erosion and
sediment controls to meet the erosion
and sediment control requirements of
the general permits for storm water
discharges associated with construction.
both above and below 5 acres.
4. General Permits
EPA recommends using general
permits for all newly regulated storm
water sources under today's rule. The
use of general permits, instead of
individual permits, reduces the
administrative burden on permitting
authorities, while also limiting the
paperwork burden on regulated parties
seeking permit authorization. Permitting
authorities may, of course, require
individual permits in some cases to
address specific concerns, including
permit non-compliance.
EPA recommends that general permits
for MS4s, in particular, be issued on a
watershed basis, but recognizes that
each permitting authority must decide
how to develop its general permit(s).
Permit conditions developed to address
concerns and conditions of a specific
watershed could reflect a watershed
plan; such permit conditions must
provide for attainment of applicable
water quality standards (including
designated uses), allocations of
pollutant loads established by a TMDL,
and timing requirements for
implementation of a TMDL. If the
permitting authority issues a State-wide
general permit, the permitting authority
may include separate conditions
tailored to individual watersheds or
urbanized areas. Of course, for a newly
regulated MS4, modification of an
existing individual MS4 permit to
include the newly regulated MS4 as a
"limited co-permittee" also remains an
option.
5. Tool Box
During the FACA process, many
Storm Water Phase II FACA
Subcommittee representatives expressed
an interest, which was endorsed by the
full Committee, in having EPA develop
a "tool box" to assist States, Tribes,
municipalities, and other parties
involved in the Phase II program. EPA
made a commitment to work with Storm
Water Phase II FACA Subcommittee
representatives in developing such a
tool box. with the expectation that a tool
box would facilitate implementation of
the storm water program in an effective
and cost-efficient manner. EPA has
developed a preliminary working tool
box (available on EPA's web page at
w\vw.epa.gov/owm/sw/toolbox). EPA
intends to have the tool box fully
developed by the time of the first
general permits. EPA also intends to
update the tool box as resources and
data become available. The tool box will
include the following eight main
components: fact sheets; guidances; a
menu of BMPs for the six MS4
minimum measures; an information
clearinghouse; training and outreach
efforts; technical research; support for
demonstration projects; and compliance
monitoring/assistance tools. EPA
intends to issue the menu of BMPs, both
structural and non-structural, by
October 2000. In addition, EPA will
issue by October 2000 a "model" permit
and will issue by October 2001 guidance
materials on the development of
measurable goals for municipal
programs.
In an attempt to avoid duplication,
the Agency has undertaken an effort to
identify and coordinate sources of
information that relate to the storm
water discharge control program from
both inside and outside the Agency.
Such information includes research and
demonstration projects, grants, storm
water management-related programs,
and compendiums of available
documents, including guidances, related
directly or indirectly to the
comprehensive NPDES storm water
program. Based on this effort, EPA is
developing a tool box containing fact
sheets and guidance documents
pertaining to the overall program and
rule requirements (e.g., guidance on
municipal and construction programs,
and permitting authority guidance on
designation and waiver criteria); models
of current programs aimed at assisting
States, Tribes, municipalities, and
others in establishing programs; a
comprehensive list of reference
documents organized according to
subject area (e.g., illicit discharges,
watersheds, water quality standards
attainment, funding sources, and similar
types of references); educational
materials; technical research data; and
demonstration project results. The
information collected by EPA will not
only provide the background for tool
box materials, but will also be made
available through an information
clearinghouse on the world wide web.
With assistance from EPA, the
American Public Works Association
(APWA) developed a workbook and
series of workshops on the proposed
Phase II rule. Ten workshops were held
from September 1998 through May
1999. Depending on available funding,
these workshops may continue after
publication of today's final rule. EPA
also intends to provide training to
enable regional offices to educate States,
Tribes, and municipalities about the
storm water program and the
availability of the tool box materials.
The CWA currently provides funding
mechanisms to support activities related
to storm water. These mechanisms will
be described in the tool box. Activities
funded under grant and loan programs,
which could be used to assist in storm
water program development, include
programs in the nonpoint source area,
storm water demonstration projects,
source water protection and wastewater
construction projects. EPA has already
provided funding for numerous research
efforts in these areas, including a
database of BMP effectiveness studies
(described below), an assessment of
technologies for storm water
management, a study of the
effectiveness of storm water BMPs for
controlling the impacts of watershed
imperviousness, protocols for wet
weather monitoring, development of a
dynamic model for wet weather flows,
and numerous outreach projects.
EPA has entered into a cooperative
agreement with the Urban Water
Resources Research Council of the
American Society of Civil Engineers
(ASCE) to develop a scientifically-based
management tool for the information
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66738 Federal Register/Vol. 64. No. 235/Wednesday, December 8, 1999/Rules and Regulations
needed to evaluate the effectiveness of
urban storm water runoff BMPs
nationwide. The long-term goal of the
National Stormwater BMP Database
project is to promote technical design
improvements for BMPs and to better
match their selection and design to the
local storm water problems being
addressed. The project team has
collected and evaluated hundreds of
existing published BMP performance
studies and created a database covering
about 75 test sites. The database
includes detailed information on the
design of each BMP and its watershed
characteristics, as well as its
performance. Eventually the database
will include the nationwide collection
of information on the characteristics of
structural and non-structural BMPs,
data collection efforts (e.g., sampling
and flow gaging equipment),
climatological characteristics, watershed
characteristics, hydrologic data, and
constituent data. The database will
continue to grow as new BMP data
become available. The initial release of
the database, which includes data entry
and retrieval software, is available on
CD-ROM and operates on Windows®-
compatible personal computers. The
ASCE project team envisions that
periodic updates to the database will be
distributed through the Internet. The
team is currently developing a system
for Internet retrieval of selected database
records, and this system is expected to
be available in early 2000.
EPA and ASCE invite BMP designers,
owners and operators to participate in
the continuing database development
effort. To make this effort successful, a
large database is essential. Interested
persons are encouraged to submit their
BMP performance evaluation data and
associated BMP watershed
characteristics for potential entry into
the database. The software included in
the CD-ROM allows data providers to
enter their BMP data locally, retain and
edit the data as needed, and submit
them to the ASCE Database
Clearinghouse when ready.
To obtain a copy of the database,
please contact Jane Clary, Database
Clearinghouse Manager, Wright Water
Engineers, Inc., 2490 W. 26th Ave.,
Suite 100A, Denver, CO 80211; Phone
303-480-1700; E-mail
clary@wrightwater.com.
In addition, EPA requests that
researchers planning to conduct BMP
performance evaluations compile and
collect BMP reporting information
according to the standard format
developed by ASCE. The format is
provided with the database software and
is also available on the ASCE website at
www.asce.org/peta/tech/nsbd01.html.
6. Deadlines Established in Today's
Action
Exhibit 2 outlines the various
deadlines established under today's
final rule. EPA believes that the dates
allow sufficient time for completion of
both the NPDES permitting authority's
and the permittee's program
responsibilities.
EXHIBIT 2-SroRM WATER PHASE II ACTIONS DEADLINES
Activity
Deadline date
NPDES-authorized Slates modify NPDES program if no statutory
change is required.
NPDES-authorized States modify NPDES program if statutory change
is required.
EPA issues a menu of BMPs for regulated small MS4s
ISTEA sources submit permit application
Permitting authority issues general permit(s) (if this type of permit cov-
erage is selected).
Regulated small MS4s submit permit application:
a. If designated under §122.32(a)(1) unless the permitting author-
ity has established a phasing schedule under §123.35(d)(3).
b. If designated under §122.32(a)(2) or §§ 122.26(a)(9)(i) (C) or
(D).
Storm water discharges associated with small construction activity sub-
mit permit application:
a. If designated under §122.26(b)(15)(i)
b. If designated under § 122.26(b)(15)(ii)
Permitting authority designates small MS4s under §123.35(b)(2)
Regulated small MS4s' program fully developed and implemented
Reevaluation of the municipal storm water rules by EPA
Permitting authority determination on a petition
Non-municipal sources designated under §122.26(a)(9)(i) (C) or (D)
submit permit application.
Submission of No Exposure Certification
1 year from date of publication of today's rule in the Federal Register.
2 years from date of publication of today's rule in the Federal Reg-
ister.
October 27, 2000
3 years and 90 days from date of publication of today's rule in the Fed-
eral Register.
3 years from date of publication of today's rule in the Federal Reg-
ister.
a. 3 years and 90 days from date of publication of today's rule in the
Federal Register.
b. Within 180 days of notice.
a. 3 years and 90 days from date of publication of today's rule in the
Federal Register
b. Within 180 days of notice.
3 years from date of publication of today's rule in the Federal Register
or 5 years from date of publication of today's rule in the Federal
Register if a watershed plan is in place
Up to 5 years from date of permit issuance.
13 years from date of publication of today's rule in the Federal Reg-
ister
Within 180 days of receipt.
Within 180 days of notice.
Every 5 years.
B. Readable Regulations
Today, EPA is finalizing new
regulations in a "readable regulation"
format. This reader-friendly, plain
language approach is a departure from
traditional regulatory language and
should enhance the rule's readability.
These plain language regulations use
questions and answers, "you" to
identify the person who must comply,
and terms like "must" rather than
"shall" to identify a mandate. This new
format, which minimizes layers of
subparagraphs, should also allow the
reader to easily locate specific
provisions of the regulation.
Some sections of today's final rule are
presented in the traditional language
and format because these sections
amend existing regulations. The
readable regulation format was not used
in these existing provisions in an
attempt to avoid confusion or disruption
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68739
of the readability of the existing
regulations.
Most commenters supported EPA's
use of plain language and agreed with
EPA that the question and answer
format makes the rule easier to
understand. Three commenters thought
that EPA should retain the traditional
rule format. The June 1,1998,
Presidential memorandum directs all
government agencies to write
documents in plain language. Based on
the majority of the comments, EPA has
retained the plain language format used
in the January 9,1998, proposal in
today's final rule.
The proposal to today's final rule
included guidance as well as legal
requirements. The word "must"
indicates a requirement. Words like
"should," "could," or "encourage"
indicate a recommendation or guidance.
In addition, the guidance was set off in
parentheses to distinguish it from
requirements.
EPA received numerous comments
supporting the inclusion of guidance in
the text of the Code of Federal
Regulations (CFR), as well as comments
opposing inclusion of guidance.
Supporters stated that preambles and
guidance documents are often not
accessible when rules are implemented.
Any language not included in the CFR
is therefore not available when it may be
most needed. Commenters that opposed
including guidance in the CFR
expressed the concern that any language
in the rule might be interpreted as a
requirement, in spite of any clarifying
language. They suggested that guidance
be presented in the preamble and
additional guidance documents.
The majority of commenters on this
issue thought that the guidance should
be retained but the distinction between
requirements and guidance should be
better clarified. Suggestions included
clarifying text, symbols, and a change
from use of the word "should" to "EPA
recommends" or "EPA suggests". EPA
believes that it is important to include
the guidance in the rule and agrees that
the distinction between requirements
and EPA recommendations must be very
clear. In today's final rule, EPA has put
the guidance in paragraphs entitled
"Guidance" and replaced the word
"should" with "EPA recommends."
This is intended to clarify that the
recommendations contained in the
guidance paragraphs are not legally
binding.
C. Program Framework: NPDES
Approach
Today's rule regulates Phase II
sources using the NPDES permit
program. EPA interprets Clean Water
Act section 402(p)(6) as authorizing the
Agency to develop a storm water
program for Phase II sources either as
part of the existing NPDES permit
program or as a stand alone non-NPDES
program such as a self-implementing
rule. Under either approach, EPA
interprets section 402(p)(6) as directing
EPA to publish regulations that
"regulate" the remaining unregulated
sources, specifically to establish
requirements that are federally
enforceable under the CWA. Although
EPA believes that it has the discretion
to not require sources regulated under
CWA section 402(p)(6) to be covered by
NPDES permits, the Agency has
determined, for the reasons discussed
below, that it is most appropriate to use
NPDES permits in implementing the
program to address the sources
designated for regulation in today's rule.
As discussed in Section II.A,
Overview, EPA sought to achieve
certain goals in today's final rule. EPA
believes that the NPDES program best
achieves EPA's goals for today's final
rule for the reasons discussed below.
Requiring Phase II sources to be
covered by NPDES permits helps
address the consistency problems
currently caused by municipal "donut
holes." Donut holes are gaps in program
coverage where a small unregulated
MS4 is located next to or within a
regulated larger MS4 that is subject to
an NPDES permit under the Phase I
NPDES storm water program. The
existence of such "donut holes" creates
an equity problem because similar
discharges may remain unregulated
even though they cause or contribute to
the same adverse water quality impacts.
Using NPDES permits to regulate the
unregulated discharges in these areas is
intended to facilitate the development
of a seamless regulatory program for the
mitigation and control of contaminated
storm water discharges in an urbanized
area. For example, today's rule allows a
newly regulated MS4 to join as a
"limited" co-permittee with a regulated
MS4 by referencing a common storm
water management program. Such
cooperation should be further
encouraged by the fact that the
minimum control measures required in
today's rule for regulated small MS4s
are very similar to a number of the
permit requirements for medium and
large MS4s under the Phase I storm
water program. The minimum control
measures applicable to discharges from
smaller MS4s are described with
slightly more generality than under the
Phase I permit application regulations
for larger MS4s, thus enabling
maximum flexibility for operators of
smaller MS4s to optimize efforts to
protect water quality.
Today's rule also applies NPDES
permit requirements to construction
sites below 5 acres that are similar to the
existing requirements for those 5 acres
and above. In addition, the rule would
allow compliance with qualifying local,
Tribal, or State erosion and sediment
controls to meet the erosion and
sediment control requirements of the
general permits for storm water
discharges associated with construction,
both above and below 5 acres.
Incorporating the CWA section
402(p)(6) program into the NPDES
program capitalizes upon the existing
governmental infrastructure for
administration of the NPDES program.
Moreover, much of the regulated
community already understands the
NPDES program and the way it works.
Another goal of the NPDES program
approach is to provide flexibility in
order to facilitate and promote
watershed planning and sensitivity to
local conditions. NPDES permits
promote those goals in several ways.
NPDES general permits may be used to
cover a category of regulated sources on
a watershed basis or within political
boundaries. The NPDES permitting
process provides a mechanism for storm
water controls tailored on a case-by-case
basis, where necessary. In addition, the
NPDES permit requirements of a
permittee may be satisfied by another
cooperating entity. Finally, NPDES
permits may incorporate the
requirements of existing State, Tribal
and local programs, thereby
accommodating State and Tribes
seeking to coordinate the storm water
program with other programs, including
those that focus on watershed-based
nonpoint source regulation.
In promoting the watershed approach
to program administration, EPA believes
NPDES general permits can cover a
category of dischargers within a defined
geographic area. Areas can be defined
very broadly to include political
boundaries (e.g., county), watershed
boundaries, or State or Tribal land.
NPDES permits generally require an
application or a notice of intent(NOI) to
trigger coverage. This information
exchange assures communication
between the permitting authority and
the regulated community. This
communication is critical in ensuring
that the regulated community is aware
of the requirements and the permitting
authority is aware of the potential for
adverse impacts to water quality from
identifiable locations. The NPDES
permitting process includes the public
as a valuable stakeholder and ensures
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68740 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
that the public is included and
information is made publicly available.
Another concern for EPA and several
stakeholders was that the program
ensure citizen participation. The NPDES
approach ensures opportunities for
citizen participation throughout the
permit issuance process, as well as in
enforcement actions. NPDES permits are
also federally enforceable under the
CWA.
EPA believes that the use of NPDES
permits makes a significant difference in
the degree of compliance with
regulations in the storm water program.
The NPDES program provides for public
participation in the development,
enforcement and revision of storm water
management programs. Citizen suit
enforcement has assisted in focusing
attention on adverse water quality
impacts on a localized, public priority
basis. Citizens frequently rely on the
NPDES permitting process and the
availability of NOIs to track program
implementation and help them enforce
regulatory requirements.
NPDES permits are also advantageous
to the permittee. The NPDES permit
informs the permittee about the scope of
what it is expected do to be in
compliance with the Clean Water Act.
As explained more fully in EPA's April
1995 guidance, Policy Statement on
Scope of Discharge Authorization and
Shield Associated with NPDES Permits,
compliance with an NPDES permit
constitutes compliance with the Clean
Water Act (see CWA section 402(k)). In
addition, NPDES permittees are
excluded from duplicative regulatory
regimes under the Resource
Conservation and Recovery Act and the
Comprehensive Emergency Response,
Compensation and Liability Act under
RCRA's exclusions to the definition of
"solid waste" and CERCLA's exemption
for "federally permitted releases."
EPA considered suggestions that the
Agency authorize today's rule to be
implemented as a self-implementing
rule. This would be a regulation
promulgated at the Federal, State, or
Tribal level to control some or all of the
storm water dischargers regulated under
today's rule. Under this approach, a rule
would spell out the specific
requirements for dischargers and
impose the restrictions and conditions
that would otherwise be contained in an
NPDES permit. It would be effective
until modified by EPA, a State, or a
Tribe, unlike an NPDES permit which
cannot exceed a duration of five years.
Some stakeholders believed that this
approach would reduce the burden on
the regulated community (e.g., by not
requiring permit applications), and
considerably reduce the amount of
additional paperwork, staff time and
accounting required to administer the
proposed permit requirements.
EPA is sensitive to the interest of
some stakeholders in having a
streamlined program that minimizes the
burden associated with permit
administration and maximizes
opportunities for field time spent by
regulatory authorities. Key provisions in
today's rule address some of these
concerns by promoting a streamlined
approach to permit issuance by, for
example, using general permits and
allowing the incorporation of existing
programs. By adopting the NPDES
approach rather than a self-
implementing rule, today's rule also
allows for consistent regulation between
larger MS4s and construction sites
regulated under the existing storm water
management rule and smaller sources
regulated under today's rule.
EPA believes that it is most
appropriate to use NPDES permits to
implement a program to address the
sources regulated by today's rule. In
addition to the reasons discussed above,
NPDES permits provide a better
mechanism than would a self-
implementing rule for tailoring storm
water controls on a case-by-case basis,
where necessary. One commenter
reasoned this concern could be
addressed by including provisions in
the regulation that allow site-specific
BMPs (i.e., case-by-case permits],
suggesting storm water discharges that
might require site-specific BMPs can be
identified during the designation
process of the regulatory authority. EPA
believes that, in addition to its
complexity, the commenter's approach
lacks the other advantages of the NPDES
permitting process.
A self-implementing rule would not
ensure the degree of public participation
that the NPDES permit process provides
for the development, enforcement and
revision of the storm water management
program. A self-implementing rule also
might not have provided the regulated
community the "permit shield" under
CWA section 402(k) that is provided by
an NPDES permit. Based on all these
considerations, EPA declined to adopt a
self-implementing rule approach and
adopted the NPDES approach.
Some State representatives sought
alternative approaches for State
implementation of the storm water
program for Phase II sources. These
State representatives asserted that a
non-NPDES alternative approach best
facilitated watershed management and
avoided duplication and overlapping
regulations. These representatives
believed the NPDES approach would
undercut State programs that had
developed storm water controls tailored
to local watershed concerns. Finally, a
number of commenters expressed the
view that States implement a variety of
programs not based on the CWA that are
effective in controlling storm water, and
that EPA should provide incentives for
their implementation and improvement
in performance.
Throughout the development of the
rule, State representatives sought
alternatives to the NPDES approach for
State implementation of the storm water
program for Phase II sources.
Discussions focused on an approach
whereby States could develop an
alternative program that EPA would
approve or disapprove based on
identified criteria, including that the
alternative non-NPDES program would
result in "equivalent or better protection
of water quality." The State
representatives, however, were unable
to propose or recommend criteria for
gauging whether a program would
provide equivalent protection. EPA also
did not receive any suggestions for
objective, workable criteria in response
to the Agency's explicit request for
specific criteria (by which EPA could
objectively judge such programs) in the
preamble to the proposed rule.
EPA evaluated several existing State
initiatives to address storm water and
found many cases where standards
under State programs may be
coordinated with the Federal storm
water program. Where the NPDES
permit is developed in coordination
with State standards, there are
opportunities to avoid duplication and
overlapping requirements. Under
today's rule, an NPDES permitting
authority may include conditions in the
NPDES permit that direct an MS4 to
follow the requirements imposed under
State standards, rather than the
requirements of § 122.34(b). This is
allowed as long as the State program at
a minimum imposes the relevant
requirements of § 122.34(b). Additional
opportunities follow from other
provisions in today's rule.
Seeking to further explore the
feasibility of a non-NPDES approach,
the Agency, after the proposal, had
extensive discussions with
representatives of a number of States.
Discussions related specifically to
possible alternatives for regulations of
urban storm water discharges and MS4s
specifically. The Agency also sought
input on these issues from other
stakeholders.
As a result of these discussions, many
of the commenters provided input on
issues such as: whether or not the
Agency should require NPDES permits;
whether location of MS4s in urbanized
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areas should be the basis for designation
or whether designation should be based
on other determinations relating to
water quality; whether States should be •
allowed to satisfy the conditions of the
rule through the use of existing State
programs; and issues concerning timing
and resources for program
implementation.
In response, today's rule still follows
the regulatory scheme of the proposed
rule, but incorporates additional
flexibility to address some of the
concerns raised by commenters.
In order to facilitate implementation
by States that utilize a watershed
permitting approach or similar approach
(i.e., based on a State's unified
watershed assessments), today's rule
allows States to phase in coverage for
MS4s in jurisdictions with a population
less than 10,000. Under such an
approach, States could focus their
resources on a rolling basis to assist
smaller MS4s in developing storm water
programs.
In addition, in response to concerns
that the rule should not require permit
coverage for MS4s that do not
significantly contribute to water quality
impairments, today's rule provides
options for two waivers for small MS4s.
Tne rule allows permitting authorities to
exempt from the requirement for a
permit any MS4 serving a jurisdiction
with a population less than 1,000,
unless the State determines that the
MS4 must implement storm water
controls because it is significantly
contributing to a water quality
impairment. A second waiver option
applies to MS4s serving a jurisdiction
with a population less than 10,000. For
those MS4s, the State must determine
that discharges from the MS4 do not
significantly contribute to a water
quality impairment, or have the
potential for such an impairment, in
order to provide the exemption. The
State must review this waiver on a
periodic basis no less frequently than
once every five years.
Throughout the development of
today's rule, commenters questioned
whether the Clean Water Act authorized
the use of the NPDES permit program,
pointing out that the text of CWA
402(p)(6) does not use the word
"permit." Based on the absence of the
word "permit" and the express mention
of State storm water management
programs, the commenters asserted that
Congress did not intend for Phase II
sources to be regulated using NPDES
permits.
EPA disagrees with the commenters'
interpretation of section 402(p)(6).
Section 402(p)(6) does not preclude use
of permits as part of the
"comprehensive program" to regulate
designated sources. The language
provides EPA with broad discretion in
the establishment of the
"comprehensive program." Absence of
the word "permit" (a term that the
statute does not otherwise define) does
not preclude use of a permit, which is
a familiar and reasonably well
understood regulatory implementation
vehicle. First, section 402(p)(6) says that
EPA must establish a comprehensive
program that "shall, at a minimum,
establish priorities, establish
requirements for State stormwater
management programs, and establish
expeditious deadlines." The "at a
minimum" language suggests that the
Agency may, and perhaps should,
develop a comprehensive program that
does more than merely attend to these
minimum criteria. Use of the term "at a
minimum" preserves for the Agency
broad discretion to establish a
comprehensive program that includes
use of NPDES permits.
Further, in the final sentence of the
section, Congress included additional
language to affirm the Agency's
discretion. The final sentence clarifies
that the Phase II program "may include
performance standards, guidelines,
guidance, and management practices
and treatment requirements, as
appropriate." Under existing CWA
programs, performance standards,
(effluent limitations) guidelines,
management practices, and treatment
requirements are typically implemented
through NPDES or dredge and fill
permits.
Although EPA believes that it had the
discretion to not require permits, the
Agency has determined that it is
reasonable to interpret section 402(p)(6)
to authorize permits. Moreover, for the
reasons discussed above, the Agency
believes that it is appropriate to use
NPDES permits in implementing today's
rule.
D. Federal Role
Today's final rule describes EPA's
approach to expand the existing storm
water program under CWA section
402(p)(6). As in all other Federal
programs, the Federal government plays
an integral role in complying with,
developing, implementing, overseeing,
and enforcing the program. This section
describes EPA's role in the revised
storm water program.
1. Develop Overall Framework of the
Program
The storm water discharge control
program under CWA section 402(p)(6)
consists of the rule, tool box, and
permits. EPA's primary role is to ensure
timely development and
implementation of all components.
Today's rule is a refinement of the first
step in developing the program. EPA is
fully committed to continuing to work
with involved stakeholders on
developing the tool box and issuing
permits. As noted in today's rule, EPA
will assess the municipal storm water
program based on (1) evaluations of data
from the NPDES municipal storm water
program, (2) research concerning water
quality impacts on receiving waters
from storm water, and (3) research on
BMP effectiveness. (Section II.H,
Municipal Role, provides a more
detailed discussion of this provision.)
EPA is planning to standardize
minimum requirements for construction
and post-construction BMPs in a new
rulemaking under Title III of the CWA.
While larger construction sites are
already subject to NPDES permits (and
smaller sites will be subject to permits
pursuant to today's rule), the permits
generally do not contain specific
requirements for BMP design or
performance. The permits require the
preparation of storm water pollution
prevention plans, but actual BMP
selection and design is at the discretion
of permittees, in conformance with
applicable State and local requirements.
Where there are existing State and local
requirements specific to BMPs, they
vary widely, and many jurisdictions do
not have such requirements.
In developing these regulations, EPA
intends to evaluate the inclusion of
design and maintenance criteria as
minimum requirements for a variety of
BMPs used for erosion and sediment
control at construction sites, as well as
for permanent BMPs used to manage
post-construction storm water
discharges. The Agency plans to
consider the merits and performance of
all appropriate management practices
(both structural and non-structural) that
can be used to reduce adverse water
quality impacts. EPA does not intend to
require the use of particular BMPs at
specific sites, but plans to assist
builders and developers in BMP
selection by publishing data on the
performance to be expected by various
BMP types. EPA would like to build
upon the successes of some of the
effective State and local storm water
programs currently in place around the
country, and to establish nation-wide
criteria to support builders and local
jurisdictions in appropriate BMP
selection.
2. Encourage Consideration of Smart
Growth Approaches
In the proposal, EPA invited comment
on possible approaches for providing
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68742 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
incentives for local decision making that
would limit the adverse impacts of
growth and development on water
quality. EPA asked for comments on this.
"smart growth" approach.
EPA received comments on all sides
of this issue. A number of commenters
supported the idea of "smart growth"
incentives but did not present concrete
ideas. Several commenters suggested
"smart growth" criteria. States that have
adopted "smart growth" laws were
worried that EPA's focus on urbanized
areas for municipal requirements could
encourage development outside of
designated growth areas. Today's final
rule clearly allows States to expand
coverage of their municipal storm water
program outside of urbanized areas. In
addition, the flexibility of the six
municipal minimum measures should
avoid encouragement of development
into rural rather than urban areas. For
example, as part of the post-
construction minimum measure, EPA
recommends that municipalities
consider policies and ordinances that
.encourage infill development in higher
density urban areas, and areas with
existing infrastructure, in order to meet
the measure's intent.
EPA also received several comments
expressing concern that incorporating
"smart growth" incentives threatened
the autonomy of local governments. One
commenter was worried that
"incentives" could become more
onerous than the minimum measures.
EPA is very aware of municipal
concerns about possible federal
interference with local land use
planning. EPA is also cognizant of the
difficulty surrounding incentives for
"smart growth" activities due to these
concerns. However, the Agency believes
it has addressed these concerns by
proposing a flexible approach and will
continue to support the concept of
"smart growth" by encouraging policies
that limit the adverse impacts of growth
and development on water quality.
3. Provide Financial Assistance
Although Congress has not
established a fund to fully finance
implementation of the proposed
extension of the existing NPDES storm
water program under CWA section
402(p)(6), numerous federal financing
programs (administered by EPA and
other federal agencies) can provide
some financial assistance. The primary
funding mechanism is the Clean Water
State Revolving Fund (SRF) program,
which provides sources of low-cost
financing for a range of water quality
infrastructure projects, including storm
water. In addition to the SRF, federal
financial assistance programs include
the Water Quality Cooperative
Agreements under CWA section
104(b)(3), Water Pollution Control
Program grants to States under CWA
section 106, and the Transportation
Equity Act for the 21st Century (TEA-
21) among others. In addition, Section
319 funds may be used to fund any
urban storm water activities that are not
specifically required by a draft or final
NPDES permit. EPA will develop a list
of potential funding sources as part of
the tool box implementation effort. EPA
anticipates that some of these programs
will provide funds to help develop and,
in limited circumstances, implement the
CWA section 402(p)(6) storm water
discharge control program.
EPA received numerous comments
that requested additional funding.
Congress provided one substantial new
source of potential funding for
transportation related storm water
projects—TEA-21. The Department of
Transportation has included a number
of water-related provisions in its TEA-
21 planning. These include
Transportation Enhancements,
Environmental Restoration and
Pollution Abatement, and
Environmental Streamlining. More
information on TEA—21 is available at
the following internet sites:
www.fhwa.dot.gov/tea21/outreach.htm
and www.tea21.org.
4. Implement the Program in
Jurisdictions Not Authorized To
Administer the NPDES Program
Because today's final rule uses the
NPDES framework, EPA will be the
NPDES permitting authority in several
States, Tribal jurisdictions, and
Territories. As such, EPA will have the
same responsibilities as any other
NPDES permitting authority—issuing
permits, designating additional sources,
and taking appropriate enforcement
actions—and will seek to tailor the
storm water discharge control program
to the specific needs in that State, Tribal
jurisdiction, or Territory. EPA also plans
to provide support and oversight,
including outreach, training, and
technical assistance to the regulated
communities. Section II.G. of today's
preamble provides a separate discussion
related to the NPDES permitting
authority's responsibilities for today's
final rule.
5. Oversee State and Tribal Programs
Under the NPDES program, EPA plays
an oversight role for NPDES-approved
States and Tribes. In this role, EPA and
the State or Tribe work together to
implement, enforce, and improve the
NPDES program. Part of this oversight
role includes working with States and
Tribes to modify their programs where
programmatic or implementation
concerns impede program effectiveness.
This role will be vitally important when
States and Tribes make adjustments to
develop, implement, and enforce
today's extension of the existing NPDES
storm water discharge control program.
In addition, States maintain a
continuing planning process (CPP)
under CWA section 303(e), which EPA
periodically reviews to assess the
program's achievements.
In its oversight role, EPA takes action
to address States and Tribes who have
obtained NPDES authorization but are
not fulfilling their obligations under the
NPDES program. If an NPDES-
authorized State or Tribe fails to
implement an adequate NPDES storm
water program, for example, EPA
typically enters into extensive
discussions to resolve outstanding
issues. EPA has the authority to
withdraw the entire NPDES program
when resolution cannot be reached.
Partial program withdrawal is not
provided for under the CWA except for
partial approvals.
EPA is also working with the States
and Tribes to improve nonpoint source
management programs and assessments
to incorporate key program elements.
Key nonpoint source program elements
include setting short and long term
goals and objectives; establishing public
and private partnerships; using a
balanced approach incorporating
Statewide and watershed-wide
abatement of existing impairments;
preventing future impairments;
developing processes to address both
impaired and threatened waters;
reviewing and upgrading all program
components, including program
revisions on a 5-year cycle; addressing
federal land management and activities
inconsistent with State programs; and
managing State nonpoint source
management programs effectively.
In particular, EPA works with the
States and Tribes to strengthen their
nonpoint source pollution programs to
address all significant nonpoint sources,
including agricultural sources, through
the CWA section 319 program. EPA is
working with other government
agencies, as well as with community
groups, to effect voluntary changes
regarding watershed protection and
reduced nonpoint source pollution.
In addition, EPA and NOAA have
published programmatic and technical
guidance to address coastal nonpoint
source pollution. Under Section 6217 of
the CZARA, States are developing and
implementing coastal nonpoint
pollution control programs approved by
EPA and NOAA.
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6. Comply With Applicable
Requirements as a Discharger
Today's final rule covers federally
operated facilities in a variety of ways.
These facilities are generally areas
where people reside, such as a federal
prison, hospital, or military base. It also
includes federal parkways and road
systems with separate storm sewer
systems. Today's rule requires federal
MS4s to comply with the same
application deadlines that apply to
regulated small MS4s generally. EPA
believes that all federal MS4s serve
populations of less than 100,000.
EPA received several comments that
asked if individual buildings like post
offices are considered to be small MS4s
and thereby regulated in today's rule if
they are in an urbanized area. Most of
these buildings have at most a parking
lot with runoff or a storm sewer that
connects with a municipality's MS4.
EPA does not intend that individual
federal buildings be considered to be
small MS4s. This is discussed in section
II.H.Z.b. of today's preamble.
Federal facilities can also be included
under requirements addressing storm
water discharges associated with small
construction activities. In any case,
discharges from these facilities will
need to comply with all applicable
NPDES requirements and any additional
water quality-related requirements
imposed by a State, Tribal, or local
government. Failure to comply can
result in enforcement actions. Federal
facilities can act as models for
municipal and private sector facilities
and implement or test state-of-the-art
management practices and control
measures.
E. State Role
Today's final rule sets forth an NPDES
approach for implementing the
extension of the existing storm water
discharge control program under CWA
section 402(p)(6). State assumption of
the NPDES program is voluntary,
consistent with the principles of
federalism. Because most States are
approved to implement the NPDES
program, they will tailor their storm
water discharge control programs to
address their water quality needs and
objectives. While today's rule
establishes the basic framework for the
section 402(p)(6) program, States as well
as Tribes (see discussion in section II.F)
have an important role in fine-tuning
the program to address the water quality
issues within their jurisdictions. The
basic framework allows for adjustments
based on factors that vary
geographically, including climate
patterns and terrain.
Where States do not have NPDES
authority, they are not required to
implement the storm water discharge
. control program, but they may still
participate in water quality protection
through participation in the CWA
section 401 certification process (for any
permits) and through development of
water quality standards and TMDLs.
1. Develop the Program
In expanding the existing NPDES
program for storm water discharges,
States must evaluate whether revisions
to their NPDES programs are necessary.
If so, modifications must be made in
accordance with § 123.62. Under
§ 123.62, States must revise their NPDES
programs within 1 year, or within 2
years if statutory changes are necessary.
Some States and departments of
transportation (DOTs) commented that
this timeframe is too short, anticipating
that the State legislative process and the
modification of regulations combined
would take beyond 2 years. The
deadline language in § 123.62 is not new
language for the storm water discharge
control program; it applies to all NPDES
programs. EPA believes the vast
majority of States will meet the deadline
and will work with States in those cases
where there may be difficulty meeting
this deadline due to the timing of
legislative sessions and the regulatory
development process.
An authorized State NPDES program
must meet the requirements of CWA
section 402(b) and conform to the
guidelines issued under CWA section
304(i)(2). Today's final rule under
§ 123.25 adds specific cross references
to the storm water discharge control
program components to ensure that
States adequately address these
requirements.
2. Comply With Applicable
Requirements as a Discharger
Today's final rule covers State
operated separate storm sewer systems
in a variety of ways. These systems
generally drain areas where people
reside, such as a prison, hospital, or
other populated facility. These systems
are included under the definition of a
regulated small MS4, which specifically
identifies systems operated by State
departments of transportation.
Alternatively, storm water discharges
from State activities may be regulated
under the section addressing storm
water discharges associated with small
construction activities. In any case,
discharges from these facilities must
comply with all applicable NPDES
requirements. Failure to comply can
result in enforcement actions. State
facilities can act as models for •
municipal and private sector facilities
and implement or test state-of-the-art
management practices and control
measures.
3. Communicate With EPA
Under approved NPDES programs,
States have an ongoing obligation to
share information with EPA. This
dialogue is particularly important in the
CWA section 402(p)(6) storm water
program where these governments
continue to develop a great deal of the
guidance and outreach related to water
quality.
F. Tribal Role
The proposal to today's final rule
provides background information on
EPA's 1984 Indian Policy and the
criteria for treatment of an Indian Tribe
in the same manner as a State. Today's
final rule extends the existing NPDES
program for storm water discharges to
two types of dischargers located in
Indian country. First, the final rule
designates storm water discharges from
any regulated small MS4, including
Tribal systems. Second, the final rule
regulates discharges associated with
construction activity disturbing between
one and five acres of land, including
sites located in Indian country.
Operators in each of these categories of
regulated activity must apply for
coverage under an NPDES permit by 3
years and 90 days from the date of
publication of today's final rule. Under
existing regulations, however, EPA or an
authorized NPDES Tribe may require a
specified storm water discharger to
apply for NPDES permit coverage before
this deadline based on a determination
that the discharge is contributing to a
violation of a water quality standard
(including designated uses) or is a
significant contributor of pollutants.
Under today's rule, a Tribal
governmental entity may regulate storm
water discharges on its reservation in
two ways—as either an NPDES-
authorized Tribe or as a regulated MS4.
If a Tribe is authorized to operate the
NPDES program, the Tribe must
implement today's final rule for the
NPDES program for storm water for
covered dischargers located within the
EPA recognized boundaries. Otherwise,
EPA is generally the permitting/program
authority within Indian country.
Discussions about the State Role in the
preceding section also apply to NPDES
authorized Tribes. For additional
information on the role and
responsibilities of the permitting
authority in the NPDES storm water
program, see § 123.35 (and Section II.G.
of today's preamble) and § 123.25(a).
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Under today's final rule, if the Indian
reservation is located entirely or
partially within an "urbanized area," as
defined in § 122.32(a)(l), the Tribe must-
obtain an NPDES permit if it operates a
small MS4 within the urbanized area
portion. Tribal MS4s located outside an
urbanized area are not automatically
covered, but may be designated by EPA
pursuant to § 122.32(a)(2) of today's rule
or may request designation as a
regulated small MS4 from EPA. A Tribe
that is a regulated MS4 for NPDES
program purposes is required to
implement the six minimum control
measures to the extent allowable under
Federal law.
The Tribal representative on the
Storm Water Phase II FACA
Subcommittee asked EPA to provide a
list of the Tribes located in urbanized
areas that would fall within the NPDES
storm water program under today's final
rule. In December 1996, EPA-developed
a list of federally recognized American
Indian Areas located wholly or partially
in Bureau of the Census-designated
urbanized areas (see Appendix 1).
Appendix 1 not only provides a listing
of reservations and individual Tribes,
but also the name of the particular
urbanized area in which the reservation
is located and an indication of whether
the urbanized area contains a medium
or large MS4 that is already covered by
the existing Phase I regulations.
Some of the Tribes listed in Appendix
1 are only partially located in an
urbanized area. If the Tribe's MS4 serves
less than 1,000 people within an
urbanized area, the permitting authority
may waive the Tribe's MS4 storm water
requirements if it meets the conditions
of § 122.32(c). EPA does not have
information on the Tribal populations
within the urbanized areas, so it can not
identify the Tribes that are eligible for
a waiver. Therefore, a Tribe that
believes it qualifies for a waiver should
contact its permitting authority.
G. NPDES Permitting Authority's Role
for the NPDES Storm Water Small MS4
Program
As noted previously, the NPDES
permitting authority can be EPA or an
authorized State or an authorized Tribe.
The following discussion describes the
role of the NPDES permitting authority
under today's final rule.
1. Comply With Implementation
Requirements
NPDES permitting authorities must
perform certain duties to implement the
NPDES storm water municipal program.
Section 123.35(a) of today's final rule
emphasizes that permitting authorities
have existing obligations under the
NPDES program. Section 123.35 focuses
on specific issues related to the role of
the NPDES authority to support
administration and implementation of
the municipal storm water program
under CWA section 402(p)(6).
2. Designate Sources
Section 123.35(b) of today's final rule
addresses the requirements for the
NPDES permitting authority to
designate sources of storm water
discharges to be regulated under
§§ 122.32 through 122.36. NPDES
permitting authorities must develop a
process, as well as criteria, to designate
small MS4s. They must also have the
authority to designate a small MS4 if
and when circumstances that support a
waiver under § 122.32(c) change. EPA
may make designations if an NPDES-
approved State or Tribe fails to do so.
NPDES permitting authorities must
examine geographic jurisdictions that
they believe should be included in the
storm water discharge control program
but are not located in an "urbanized
area". Small MS4s in these areas are not
designated automatically. Discharges
from such areas should be brought into
the program if found to have actual or
potential exceedances of water quality
standards, including impairment of
designated uses, or other adverse
impacts on water quality, as determined
by local conditions or watershed and
TMDL assessments. EPA's aim is to
address discharges to impaired waters
and to protect waters with the potential
for problems. EPA encourages NPDES
permitting authorities, local
governments, and the interested public
to work together in the context of a
watershed plan to address water quality
issues, including those associated with
municipal storm water runoff.
EPA received comments stating that
the process of developing criteria and
applying it to all MS4s outside an
urbanized area serving a population of
10,000 or greater and with a density of
1,000 people per square mile is too
time-consuming and resource-intensive.
These commenters believe that the
permitting authority should decide
which MS4s must be brought into the
storm water discharge control program
and that population and density should
not be an overriding criteria. One
suggested way of doing so was to only
designate MS4s with demonstrated
contributions to the impairment of
water quality uses as shown by a TMDL.
EPA disagrees with this suggestion. The
TMDL process is time-consuming. MS4s
outside of urbanized areas may cause
water quality problems long before a
TMDL is completed.
EPA believes that permitting
authorities should consider the
potential water quality impacts of storm
water from all jurisdictions with a
population of 10,000 or greater and a
density of 1,000 people per square mile.
EPA is using data summarized in the
NURP study and in the CWA section
305(b) reports to support this approach
for targeted designation outside of
urbanized areas. EPA is not mandating
which criteria are to be used, but has
' provided examples of criteria that may
be useful in evaluating potential water
quality impacts. EPA believes that the
flexibility provided in this section of
today's final rule allows the permitting
authority to develop criteria and a
designation process that is easy to use
and protects water quality. Therefore,
the provisions of § 123.35(b) remain as
proposed.
a. Develop Designation Criteria
Under § 123.35(b), the NPDES
permitting authority must establish
designation criteria to evaluate whether
a storm water discharge results in or has
the potential to result in exceedances of
water quality standards, including
impairment of designated uses, or other
significant water quality impacts,
including adverse habitat and biological
impacts.
EPA recommends that NPDES
permitting authorities consider, in a
balanced manner, certain locally-
focused criteria for designating any MS4
located outside of an urbanized area on
the basis of significant water quality
impacts. EPA recommends
consideration of criteria such as
discharge to sensitive waters, high
growth or growth potential, high
population density, contiguity to an
urbanized area, significant contribution
of pollutants to waters of the United
States, and ineffective control of water
quality concerns by other programs.
These suggested designation criteria are
intended to help encourage the
permitting authority to use an objective
method for identifying and designating,
on a local basis, sources that adversely
impact water quality. More information
about these criteria and the reasons why
they are suggested by EPA is included
in the January 9,1998, proposal (63 FR
1561) for today's final rule.
The suggested criteria are meant to be
taken in the aggregate, with a great deal
of flexibility as to how each should be
weighed in order to best account for
watershed and other local conditions
and to allow for a more tailored case-by-
case analysis. The application of criteria
is meant to be geographically specific.
Furthermore, each criterion does hot
have to be met in order for a small MS4
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to qualify for designation, nor should an
MS4 necessarily be designated on the
basis of one or two criteria alone.
EPA believes that the application of
the recommended designation criteria
provides an objective indicator of real
and potential water quality impacts
from urban runoff on both the local and
watershed levels. EPA encourages the
application of the recommended criteria
in a watershed context, thereby allowing
for the evaluation of the water quality
impacts of the portions of a watershed •
outside of an urbanized area. For
example, situations exist where the
urbanized area represents a small
portion of a degraded watershed, and
the adjacent nonurbanized areas of the
\vatershed have significant cumulative
effects on the quality of the receiving
waters.
EPA received numerous suggestions
of additional criteria that should be
added and reasons why some of the
criteria in the proposal to today's final
rule were not appropriate. EPA
developed its suggested designation
criteria based on findings of the NURP
study and other studies that indicate
pollutants of concern, including total
suspended solids, chemical oxygen
demand, and temperature. These criteria
were the subject of considerable
discussion by the Storm Water Phase II
FACA Subcommittee. EPA developed
them in response to recommendations
from the subcommittee during
development of the proposed rule. The
listed criteria are only suggestions.
Permitting authorities are required to
develop their own criteria. EPA has not
found any reason to change its
suggested list of criteria and the
suggestions remain as proposed.
b. Apply Designation Criteria
After customizing the designation
criteria for local conditions, the
permitting authority must apply such
criteria, at a minimum, to any MS4
located outside of an urbanized area
serving a jurisdiction with a population
of at least 10,000 and a population
density of 1,000 people per square mile
or greater (see §123.35(b)(2)). If the
NPDES permitting authority determines
that an MS4 meets the criteria, the
permitting authority must designate it as
a regulated small MS4. This designation
must occur within 3 years of publication
of today's final rule. Alternatively, the
NPDES authority can designate within 5
years from the date of final regulation if
the designation criteria are applied on a
watershed basis where a comprehensive
watershed plan exists (a comprehensive
watershed plan is one that includes the
equivalents of TMDLs) (see
§ 123.35(b)(3)). The extended 5 year
deadline is intended to provide
incentives for watershed-based
designations. If an NPDES-authorized
State or Tribe does not develop and
apply designation criteria within this
timeframe, then EPA has the
opportunity to do so in lieu of the
authorized State or Tribe.
NPDES permitting authorities can
designate any small MS4, including one
below 10,000 in population and 1,000 in
density. EPA established the 10.000/
1,000 threshold based on the likelihood
of adverse water quality impacts at these
population and density levels. In
addition, the 1,000 persons per square
mile threshold is consistent with both
the Bureau of the Census definition of
an "urbanized area" (see Section II.H.2.
below) and stakeholder discussions
concerning the definition of a regulated
small MS4.
One commenter requested that EPA
develop interim deadlines for
development of designation criteria.
EPA believes that the designation
deadline identified in today's final rule
at § 123.35(b)(3) provides States and
Tribes with a flexibility that allows
them to develop and apply the criteria
locally in a timely fashion, while at the
same time establishing an expeditious
deadline.
c. Designate Physically Interconnected
Small MS4s
In addition to applying criteria on a
local basis for potential designation, the
NPDES permitting authority must
designate any MS4 that contributes
substantially to the pollutant loadings of
a physically interconnected municipal
separate storm sewer that is regulated by
the NPDES program for storm water
discharges (see § 123.35(b)(4)). To be
"physically interconnected," the MS4 of
one entity, including roads with
drainage systems and municipal streets,
is physically connected directly to the
municipal separate storm sewer of
another entity. This provision applies to
all MS4s located outside of an
urbanized area. EPA added this section
in recognition of the concerns of local
government stakeholders that a local
government should not have to shoulder
total responsibility for a storm water
program when storm water discharges
from another MS4 are also contributing
pollutants or adversely affecting water
quality. This provision also helps to
provide some consistency among MS4
programs and to facilitate watershed
planning in the implementation of the
NPDES storm water program. EPA
recommended physical
interconnectedness in the existing
NPDES storm water regulations as a
factor for consideration in the
designation of additional sources.
Today's final rule does not include
interim deadlines for identifying
physically interconnected MS4s.
However, consistent with the deadlines
identified in § 123.35(b)(3) of today's
final rule, EPA encourages the
permitting authority to make these
determinations within 3 years from the
date of publication of the final rule or
within 5 years if the permitting
authority is implementing a
comprehensive watershed plan.
Alternatively, the affected jurisdiction
could use the petition process under 40
CFR 122.26(f) in seeking to have the
permitting authority designate the
contributing jurisdiction.
Several commenters expressed
concerns about who could be designated
under this provision (§ 123.35(b)(4)).
One commenter requested that the word
"substantially" be deleted from the rule
because they believe any MS4 that
contributes at all to a physically
interconnected municipal separate
storm sewer should be regulated. EPA
believes that the word "substantially"
provides necessary flexibility to the
permitting authorities. The permitting
authority can decide if an MS4 is
contributing discharges to another
municipal separate storm sewer in a
manner that requires regulation. If the
operator of a regulated municipal
separate storm sewer believes that some
of its pollutant loadings are coming
from an unregulated MS4, it can
petition the permitting authority to
designate the unregulated MS4 for
regulation.
d. Respond to Public Petitions for
Designation
Today's final rule reiterates the
existing opportunity for the public to
petition the permitting authority for
designation of a point source to be
regulated to protect water quality. The
petition opportunity also appears in
existing NPDES regulations at 40 CFR
122.26(fJ. Any person may petition the
permitting authority to require an
NPDES permit for a discharge composed
entirely of storm water that contributes
to a violation of a water quality standard
or is a significant contributor of
pollutants to the waters of the United
States (see § 123.32(b)). The NPDES
permitting authority must make a final
determination on any petition within
180 days after receiving the petition (see
§ 123.35(c)). EPA believes that a 180 day
limit balances the public's need for a
timely final determination with the
NPDES permitting authority's need to
prioritize its workload. If an NPDES-
approved State or Tribe fails to act
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within the 180-day timeframe, EPA may
make a determination on the petition.
EPA believes that public involvement is
an important component of the NPDES
program for storm water and feels that
this provision encourages public
participation. Section ILK, Public
Involvement/Public Role, further
discusses this topic.
3. Provide Waivers
Today's rule provides two
opportunities for the NPDES permitting
authority to exempt certain small MS4s
from the need for a permit based on
water quality considerations. See
§§ 122.32(d) and (e). The two waiver
opportunities have different size
thresholds and take different
approaches to considering the water
quality impacts of discharges from the
MS4.
In the proposal, EPA requested
comment on the option of waiving
coverage for all MS4s with less than
1,000 people unless the permitting
authority determined that the small
MS4 should be regulated based on
significant adverse water quality
impacts. A number of commenters
supported this option. They expressed
concern that compliance with the rule
requirements and certification of one of
the waiver provisions were both costly
for very small communities. They stated
that the permitting authority should
identify a water quality problem before
requiring compliance. Today's rule
essentially adopts this alternative
approach for MS4s serving a population
under 1,000.
The final rule has expanded the
waiver provision that EPA proposed for
small MS4s with a population less than
1,000. The proposed rule would have
required a small MS4 operator to certify
that storm water controls are not needed
based on either wasteload allocations
that are part of TMDLs that address the
pollutants of concern, or a
comprehensive watershed plan
implemented for the waterbody that
includes the equivalents of TMDLs and
addresses the pollutant(s) of concern.
Gommenters noted that the proposed
waivers would be unattainable if a
TMDL or equivalent analysis was
required for every pollutant that could
possibly be present in any amount in
discharges from an MS4 regardless of
whether the pollutant is causing water
quality impairment. Commenters asked
that EPA identify what constitutes the
"pollutant(s) of concern" for which a
TMDL or its equivalent must be
developed. For example, § 122.30(c)
indicates that the MS4 program is
intended to control "sediment,
suspended solids, nutrients, heavy
metals, pathogens, toxins, oxygen-
demanding substances, and floatables."
Commenters asked whether TMDLs or
equivalent analyses have to address all
of these.
EPA has revised the proposed waiver
in response to these concerns. Under
today's rule, NPDES permitting
authorities may waive the requirements
of today's rule for any-small MS4 with
a population less than 1,000 that does
not contribute substantially to the
pollutant loadings of a physically
interconnected MS4, unless the small
MS4 discharges pollutants that have
been identified as a cause of impairment
of the waters to which the small MS4
discharges. If the small MS4 does
discharge pollutants that have been
identified as impairing the water body
into which the small MS4 discharges,
the NPDES permitting authority may
grant a waiver only if it determines that
storm water controls are not needed
based on an EPA approved or
established TMDL that addresses the
pollutant(s) of concern.
Unlike the proposed rule, § 122.32(d)
does not allow the waiver for MS4s
serving a population under 1,000 to be
based on "the equivalent of a TMDL."
Because § 122.32(d) requires a pollutant
specific analysis only for a pollutant
that has been identified as a cause of
impairment, a TMDL is required for
such pollutant before the waiver may be
granted. Once a pollutant has been
identified as the cause of impairment of
a water body, the State should develop
a TMDL for that pollutant for that water
body. Thus, § 122.32(d) takes a different
approach than that taken for the waiver
in § 122.32(e) for MS4s serving a
population under 10,000, which can be
based upon an analysis that is "the
equivalent of a TMDL." This is because
§ 122.32(d) requires an analysis to
support the waiver for MS4s under
1,000 only if a waterbody to which the
MS4 discharges has been identified as
impaired. The § 122.32(e) waiver, on the
other hand, would be available for larger
MS4s but only after the State
affirmatively establishes lack of
impairment based upon a
comprehensive analysis of smaller
urban waters that might not otherwise
be evaluated for the purposes of CWA
section 303. Since § 122.32(e) requires
the analysis of waters that have not been
identified as impaired, an actual TMDL
is not required and an analysis that is
the equivalent of a TMDL can suffice to
support the waiver.
Where a State is the NPDES
permitting authority, the permitting
authority is responsible for the
development of the TMDLs as well as
the assessment of the extent to which a
small MS4's discharge contributes
pollutants to a neighboring regulated
system. In States where EPA is the
permitting authority, EPA will use a
State's TMDLs to determine whether
storm water controls are required for the
small MS4s.
The proposed rule would have
required the operator of the small MS4
serving a population under 1,000 to
certify that its discharge was covered
under a TMDL that indicated that
discharges from its particular system
were not having an adverse impact on
water quality (i.e., it was either not
assigned wasteload allocations under
TMDLs or its discharge is within an
assigned allocation). Many commenters
expressed concerns that MS4 operators
serving less than 1,000 persons may lack
the technical capacity to certify that
their discharges are not contributing to
adverse water quality impacts. These
commenters thought that the permitting
authority should make such a
certification. Today's rule provides
flexibility as to how the waiver is
administered. Permitting authorities are
ultimately responsible for granting the
waiver, but are free to determine
whether or not to require small MS4
operators that are seeking waivers to
submit information or a written
certification.
Under § 122.32(e) a State may grant a
waiver to an MS4 serving a population
between 1,000 and 10,000 only if the
State has made a comprehensive effort
to ensure that the MS4 will not cause or
contribute to water quality impairment.
To grant a § 122.32(e) waiver, the
NPDES permitting authority must
evaluate all waters of the U.S. that
receive a discharge from the MS4 and
determine that storm water controls are
not needed. The permitting authority's
evaluation must be based on wasteload
allocations that are part of an EPA
approved or established TMDL or, if a
TMDL has not been developed or
approved, an equivalent analysis that
determines sources and allocations for
the pollutant(s) of concern. The
pollutants of concern that the permitting
authority must evaluate include
biochemical oxygen demand (BOD),
sediment or a parameter that addresses
sediment (such as total suspended
solids, turbidity or siltation), pathogens,
oil and grease, and any other pollutant
that has been identified as a cause of
impairment of any water body that will
receive a discharge from the MS4.
Finally, the permitting authority must
have determined that future discharges
from the MS4 do not have the potential
to result in exceedances of water quality
standards, including impairment of
designated uses, or other significant
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water quality impacts, including habitat
and biological impacts.
Although EPA did not propose this
specific approach, the Agency did
request comment on whether to increase
the proposed 1,000 population
threshold for a waiver. The § 122.32(e)
waiver was developed in response to
comments, including States' concerns
that they needed greater flexibility to
focus their efforts on MS4s that were
causing water quality impairment.
Several commenters thought that the
threshold should be increased from
1,000 to 5,000 or 10,000. Others
suggested additional ways of qualifying
for a waiver for MS4s that discharge to
waters that are not covered by a TMDL
or watershed plan. EPA carefully
considered all the options for expanding
the waiver provisions and has decided
to expand the waiver only in the very
narrow circumstances described above
where a comprehensive analysis has
been undertaken to demonstrate that the
MS4 is not causing water quality
impairment.
The NPDES permitting authority can,
at any time, mandate compliance with
program requirements from a previously
waived small MS4 if circumstances
change. For example, a waiver can be
withdrawn in circumstances where the
permitting authority later determines
that a waived small MS4's storm water
discharge to a small stream will cause
adverse impacts to water quality or
significantly interfere with attainment of
water quality standards. A "change in
circumstances" could involve receipt of
new information. Changed
circumstances can also allow a
regulated small MS4 operator to request
a waiver at any time.
Some commenters expressed concerns
about allowing any small MS4 waivers.
One commenter stated that storm water
pollution prevention plans are
necessary to control storm water
pollution and should be required from
all regulated small MS4s. For the
reasons stated in the Background
section above, EPA agrees that the
discharges from most MS4s in
urbanized areas should be addressed by
a storm water management program
outlined in today's rule. For MS4s
serving very small areas, however, the
TMDL development process provides an
opportunity to determine whether an
MS4 serving a population less than
1,000 is having a negative impact on any
receiving water that is impaired by a
pollutant that the MS4 discharges. MS4s
serving populations up to 10,000 may
receive a waiver only if a
comprehensive analysis of its impact on
receiving water has been performed.
Other commenters said that waivers
should not be allowed for small MS4s
that discharge into another regulated
MS4. These commenters stated that the
word "substantially" should be
removed from § 122.32(d)(i) so that a
waiver would not be allowed for any
system "contributing to the storm water
pollutant loadings of a physically
interconnected regulated MS4." As
previously mentioned under the
designation discussion of section
II.G.2.C, EPA believes that the word
"substantially" provides needed
flexibility to the permitting authorities.
It is important to note that this is only
one aspect that the permitting authority
must consider when deciding on the
appropriateness of a waiver.
4. Issue Permits
NPDES permitting authorities have a
number of responsibilities regarding the
permit process. Sections 123.35(d)
through (g) ensure a certain level of
consistency for permits, yet provide
numerous opportunities for flexibility.
NPDES permitting authorities must
issue NPDES permits to cover municipal
sources to be regulated under § 122.32,
unless waived under § 122.32(c). EPA
encourages permitting authorities to use
general permits as the vehicle for
permitting and regulating small MS4s.
The Agency notes, however, that some
operators may wish to take advantage of
the option to join as a co-permittee with
an MS4 regulated under the existing
NPDES storm water program.
Today's final rule includes a
provision, § 123.35(f), that requires
NPDES permitting authorities to either
include the requirements in § 122.34 for
NPDES permits issued for regulated
small MS4s or to develop permit limits
based on a permit application submitted
by a small MS4. See Section II.H.S.a,
Minimum Control Measures, for more
details on the actual § 122.34
requirements. See Section II.H.3.C for
alternative and joint permitting options.
In an attempt to avoid duplication of
effort, § 122.34(c) allows NPDES
permitting authorities to include permit
conditions that direct an MS4 to meet
the requirements of a qualifying local,
Tribal, or State municipal storm water
management program. For a local,
Tribal, or State program to "qualify," it
must impose, at a minimum, the
relevant requirements of § 122.34(b). A
regulated small MS4 must still follow
the procedural requirements for an
NPDES permit (i.e., submit an
application, either an individual
application or an NOI under a general
permit) but will instead follow the
substantive pollutant control
requirements of the qualifying local,
Tribal, or State program.
Under § 122.35(b), NPDES permitting
authorities may also recognize existing
responsibilities among governmental
entities for the minimum control
measures in an NPDES small MS4 storm
water permit. For example, the permit
might acknowledge the existence of a
State administered program that
addresses construction site runoff and
require that the municipalities only
develop substantive controls for the
remaining minimum control measures.
By acknowledging existing programs,
this provision is meant to reduce the
duplication of efforts and to increase the
flexibility of the NPDES storm water
program.
Section 123.35(e) of today's final rule
requires permitting authorities to
specify a time period of up to 5 years
from the issuance date of an NPDES
permit for regulated small MS4
operators to fully develop and
implement their storm water programs.
As discussed more fully below,
permitting authorities should be
providing extensive support to the local
governments to assist them in
developing and implementing their
programs.
In the proposed rule, EPA stated that
the permitting authority would develop
the menu of BMPs and if they failed to
do so, EPA would develop the menu.
Commenters felt that EPA should
develop a menu of BMPs, rather than
just providing guidance. In the
settlement agreement for seeking an
extension to the deadline for issuing
today's rule, EPA committed to
developing a menu of BMPs by October
27, 2000. Permitting authorities can
adopt EPA's menu or develop their own.
The menu itself is not intended to
replace more comprehensive BMP
guidance materials. As part of the tool
box efforts, EPA will provide separate
guidance documents that discuss the
results from EPA-sponsored nationwide
studies on the design, operation and
maintenance of BMPs. Additionally,
EPA expects that the new rulemaking on
construction BMPs may provide more
specific design, operation and
maintenance criteria.
5. Support and Oversee the Local
Programs
NPDES permitting authorities are
responsible for supporting and
overseeing the local municipal
programs. Section 123.35(h) of today's
final rule highlights issues associated
with these responsibilities.
To the extent possible, NPDES
permitting authorities should provide
financial assistance to MS4s, which
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often have limited resources, for the
development and implementation of
local programs. EPA recognizes that
funding for programs at the State and
Tribal levels may also be limited, but
strongly encourages States and Tribes to
provide whatever assistance is possible.
In lieu of actual dollars, NPDES
permitting authorities can provide cost-
cutting assistance in a number of ways.
For example, NPDES permitting
authorities can develop outreach
materials for MS4s to distribute or the
NPDES permitting authority can
actually distribute the materials.
Another option is to implement an
erosion and sediment control program
across an entire State (or Tribal land),
thus alleviating the need for the MS4 to
implement its own program. The
NPDES permitting authority must
balance the need for site-specific
controls, which are best handled by a
local MS4, with its ability to offer
financial assistance. EPA, States, Tribes,
and MS4s should work as a team in
making these kinds of decisions.
NPDES permitting authorities are
responsible for overseeing the local
programs. Permitting authorities should
work with the regulated community and
other stakeholders to assist in local
program development and
implementation. This might include
sharing information, analyzing reports,
and taking enforcement actions, as
necessary. NPDES permitting authorities
play a vital role in supporting local
programs by providing technical and
programmatic assistance, conducting
research projects, and monitoring
watersheds. The NPDES permitting
authority can also assist the MS4
permittee in obtaining adequate legal
authority at the local level in order to
implement the local component of the
CWA section 402(p)(6) program.
NPDES permitting authorities are
encouraged to coordinate and utilize the
data collected under several programs.
States and Tribes address point and
nonpoint source storm water discharges
through a variety of programs. In
developing programs to carry out CWA
section 402(p)(6), EPA recommends that
States and Tribes coordinate all of their
water pollution evaluation and control
programs, including the continuing
planning process under CWA section
303(e), the existing NPDES program, the
CZARA program, and nonpoint source
pollution control programs.
In addition, NPDES permitting
authorities are encouraged to provide a
brief (e.g., two-page) reporting format to
facilitate compilation and analysis of
data from reports submitted under
§ 122.34(g)(3). EPA intends to develop a
model form for this purpose.
H. Municipal Role
1. Scope of Today's Rule
Today's final rule attempts to
establish an equitable and
comprehensive four-pronged approach
for the designation of municipal
sources. First, the approach defines for
automatic coverage the municipal
systems believed to be of highest threat
to water quality. Second, the approach
designates municipal systems that meet
a set of objective criteria used to
measure the potential for water quality
impacts. Third, the approach designates
on a case-by-case basis municipal
systems that "contribute substantially to
the pollutant loadings of a physically-
interconnected [regulated] MS4."
Finally, the approach designates on a
case-by-case basis, upon petition,
municipal systems that "contribute to a
violation of a water quality standard or
are a significant contributor of
pollutants."
Today's final rule automatically
designates for regulation small MS4s
located in urbanized areas, and requires
that NPDES permitting authorities
examine for potential designation, at a
minimum, a particular subset of small
MS4s located outside of urbanized
areas. Today's rule also includes
provisions that allow for waivers from
the otherwise applicable requirements
for the smallest MS4s that are not
causing impairment of a receiving water
body. Qualifications for the waivers
vary depending on whether the MS4
serves a population under 1,000 or a
population under 10,000. See
§§ 122.32(d) and (e). These waivers are
discussed further in section II.G.3. Any
small MS4 automatically designated by
the final rule or designated by the
permitting authority under today's final
rule is defined as a "regulated" small
MS4 unless it receives a waiver.
In today's final rule, all regulated
small MS4s must establish a storm
water discharge control program that
meets the requirements of six minimum
control measures. These minimum
control measures are public education
and outreach on storm water impacts,
public involvement participation, illicit
discharge detection and elimination,
construction site storm water runoff
control, post-construction storm water
management in new development and
redevelopment, and pollution
prevention/good housekeeping for
municipal operations.
Today's rule allows for a great deal of
flexibility in how an operator of a
regulated small MS4 is authorized to
discharge under an NPDES permit, by
providing various options for obtaining
permit coverage and satisfying the
required minimum control measures.
For example, the NPDES permitting
authority can incorporate by reference
qualifying State, Tribal, or local
programs in an NPDES general permit
and can recognize existing
responsibilities among different
governmental entities for the
implementation of minimum control
measures. In addition, a regulated small
MS4 can participate in the storm water
management program of an adjoining
regulated MS4 and can arrange to have
another governmental entity implement
a minimum control measure on their
behalf.
2. Municipal Definitions
a. Municipal Separate Storm Sewer
Systems (MS4s)
The CWA does not define the term
"municipal separate storm sewer." EPA
defined municipal separate storm sewer
in the existing storm water permit
application regulations to mean, in part,
a conveyance or system of conveyances
(including roads with drainage systems
and municipal streets) that is "owned or
operated by a State, city, town borough,
county, parish, district, association, or
other public body * * * designed or
used for collecting or conveying storm
water which is not a combined sewer
and which is not part of a Publicly
Owned Treatment Works as defined at
40 CFR 122.2" (see § 122.26(b)(8)(i)).
Section 122.26 contains definitions of
medium and large municipal separate
storm sewer systems but no definition of
a municipal separate storm sewer
system, even though the term MS4 is
commonly used. In today's rule, EPA is
adding a definition of municipal
separate storm sewer system and small
municipal separate storm sewer system
along with the abbreviations MS4 and
small MS4.
The existing municipal permit
application regulations define
"medium" and "large" MS4s as those
located in an incorporated place or
county with a population of at least
100,000 (medium) or 250,000 (large) as
determined by the latest Decennial
Census (see §§ 122.26(b)(4) and
122.26(b)(7)). In today's final rule, these
regulations have been revised to define
all medium and large MS4s as those
meeting the above population
thresholds according to the 1990
Decennial Census.
Today's rule also corrects the titles
and contents of Appendices F, G, H,& I
to Part 122. EPA is adding those
incorporated places and counties whose
1990 population caused them to be
defined as a "medium" or "large" MS4.
All of these MS4s have applied for
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68749
permit coverage so the effect of this
change to the appendices is simply to
make them more accurate. They will not
need to be revised again because today's
rule "freezes" the definition of
"medium" and "large" MS4s at those
that qualify based on the 1990 census.
EPA received several comments
supporting and opposing the proposal to
"freeze" the definitions based on the
1990 census. Commenters who
disagreed with EPA's position cited the
unfairness of municipalities that reach
the medium or large threshold at a later
date having fewer permitting
requirements compared to those that
were already at the population
thresholds when the existing storm
water regulations took effect. EPA
recognizes this disparity but does not
believe it is unfair, as explained in the
proposed rule. The decision was based
on the fact that the deadlines from the
existing regulations have lapsed, and
because the permitting authority can
always require more1 from operators of
MS4s serving "newly over 100,000"
populations.
b. Small Municipal Separate Storm
Sewer Systems
The proposal to today's final rule
added "the United States" as a potential
owner or operator of a municipal
separate storm sewer. This addition was
intended to address an omission from
existing regulations and to clarify that
federal facilities are, in fact, covered by
the NPDES program for municipal storm
\vater discharges when the federal
facility is like other regulated MS4s.
EPA received a comment that this
change would cause federal facilities
located in Phase 1 areas to be
considered Phase 1 dischargers due to
the definition of medium and large
MS4s. All MS4s located in Phase \
cities or counties are defined as Phase
1 medium or large MS4s. EPA believes
that all federal facilities serve a
population of under 100,000 and should
be regulated as small MS4s. Therefore,
in §122.26(a)(l6) of today's final rule,
EPA is adding federal facilities to the
NPDES storm water discharge control
program by changing the proposed
definition of small municipal separate
storm sewer system. Paragraph (i) of this
section restates the definition of
municipal separate storm sewer with
the addition of "the United States" as a
owner or operator of a small municipal
separate storm sewer. Paragraph (ii)
repeats the proposed language that
states that a small MS4 is a municipal
separate storm sewer that is not medium
or large.
Most commenters agreed that federal
facilities should be covered in the same
way as other similar MS4s. However,
EPA received several comments asking
whether individual federal buildings
such as post offices or urban offices of
the U.S. Park Service must apply for
coverage as regulated small MS4s. Most
of these buildings have, at most, a
parking lot with runoff or a storm sewer
that connects with a municipality's
MS4. In § 122.26(a)(16)(iii), EPA
clarifies that the definition of small MS4
does not include individual buildings.
These buildings may have a municipal
separate storm sewer but they do not
have a "system" of conveyances. The
minimum measures for small MS4s
were written to apply to storm sewer
"systems" providing storm water
drainage service to human populations
and not to individual buildings. This is
true of municipal separate storm sewers
from State buildings as well as from
federal buildings.
There will likely be situations where
the permitting authority must decide if
a federal or State complex should be
regulated as a small MS4. A federal
complex of two or three buildings could
be treated as a single building and not
be required to apply for coverage. In
these situations, permitting authorities
will have to use their best judgment as
to the nature of the complex and its
storm water conveyance system.
Permitting authorities should also
consider whether the federal or State
complex cooperates with its
municipality's efforts to implement
their storm water management program.
Along with the questions about
individual buildings, EPA received
many questions about how various
provisions of the rule should be
interpreted for federal and State
facilities. EPA acknowledges that
federal and State facilities are different
from municipalities. EPA believes,
however, that the minimum measures
are flexible enough that they can be
implemented by these facilities. As an
example, DOD commenters asked about
how to interpret the term "public" for
military installations when
implementing the public education
measure. EPA agrees with the suggested
interpretation of "public" for DOD
facilities as "the resident and employee
population within the fence line of the
facility."
EPA also received many comments
from State departments of transportation
(DOTs] that suggested the ways in
which they are different from
municipalities and should therefore be
regulated differently. Storm water
discharges from State DOTs in Phase 1
areas should already be regulated under
Phase I. The preamble to Phase 1 clearly
states that "all systems within a
geographical area including highways
and flood control districts will be
covered." Many permitting authorities
regulated State DOTs as co-permittees
with the Phase 1 municipality in which
the highway is located. State DOTs that
are already regulated under Phase I are
not required to comply with Phase II.
State DOTs that are not already
regulated have various options for
meeting the requirements of today's
rule. These options are discussed in
Section H.H.3.c.iv below. Several DOTs
commented that some of the minimum
measures are outside the scope of their
mission or that they do not have the
legal authority required for
implementation. EPA believes that the
flexibility of the minimum measures
allows them to be implemented by most
MS4s, including DOTs. When a DOT
does not have the necessary legal
authority, EPA encourages the DOT to
coordinate their storm water
management efforts with the
surrounding municipalities and other
State agencies. Under today's rule,
DOTs can use any of the options of
§ 122.35 to share their storm water
management responsibilities. DOTs may
also want to work with their permitting
authority to develop a State-wide DOT
storm water permit.
There are many storm water
discharges from State DOTs and other
State MS4s located in Phase 1 areas that
were not regulated under Phase 1.
Today's rule adds many more State
facilities as well as all federal facilities
located in urbanized areas. All of these
State and federal facilities that fit the
definition of a small MS4 must be
covered by a storm water management
program. The individual permitting
authorities must decide what type of
permit is most applicable.
The existing NPDES storm water
program already regulates storm water
from federally or State-operated
industrial sources. Federal or State
facilities that are currently regulated
due to their industrial discharges may
already be implementing some of
today's rule requirements.
EPA received comments that
questioned the apparent inconsistency
between regulating a federal facility
such as a hospital and not regulating a
similar private facility. Normally, this
type of private facility is regulated by
the MS4. EPA believes that federal
facilities are subject to local water
quality regulations, including storm
water requirements, by virtue of the
waiver of sovereign immunity in CWA
section 313. However, there are special
problems faced by MS4s in their efforts
to regulate federal facilities that have
not been encountered in regulating
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68750 Federal Register/Vol. 64. No. 235/Wednesday. December 8, 1999/Rules and Regulations
similar private facilities. To ensure
comprehensive coverage, today's rule
merely clarifies the need for permit
coverage for these federal facilities.
/. Combined Sewer Systems (CSS).
The definition of small MS4s does not
include combined sewer systems. A
combined sewer system is a wastewater
collection system that conveys sanitary
wastewater and storm water through a
single set of pipes to a publicly-owned
treatment works (POTW) for treatment
before discharging to a receiving
waterbody. During wet weather events
when the capacity of the combined
sewer system is exceeded, the system is
designed to discharge prior to the
POTW treatment plant directly into a
receiving waterbody. Such an overflow
is a combined sewer overflow or CSO.
Combined sewer systems are not subject
to existing regulations for municipal
storm water discharges, nor will they be
subject to today's regulations. EPA
addresses combined sewer systems and
CSOs in the National Combined Sewer
Overflow (CSO) Control Policy issued
on April 19, 1994 (59 FR 18688). The
CSO Control Policy contains provisions
for developing appropriate, site-specific
NPDES permit requirements for
combined sewer systems. CSO
discharges are subject to limitations
based on the best available technology
economically achievable for toxic
pollutants and based on the best
conventional pollutant control
technology for conventional pollutants.
MS4s are subject to a different
technology standard for all pollutants,
specifically to reduce pollutants to the
maximum extent practicable.
Some municipalities are served by
both separate storm sewer systems and
combined sewer systems. If such a
municipality is located within an
urbanized area, only the separate storm
sewer systems within that municipality
is included in the NPDES storm water
program and subject to today's final
rule. If the municipality is not located
in an urbanized area, then the NPDES
permitting authority has discretion as to
whether the discharges from the
separate storm sewer system is subject
to today's final rule. The NPDES
permitting authority will use the same
process to designate discharges from
portions of an MS4 for permit coverage
where the municipality is also served by
a combined sewer system.
EPA recognizes that municipalities
that have both combined and separate
storm sewer systems may wish to find
ways to develop a unified program to
meet all wet weather water pollution
control requirements more efficiently. In
the proposal to today's final rule, EPA
sought comment on ways to achieve
such a unified program. Many
municipalities that are served by CSSs
and MS4s commented that it is
inequitable to force them to comply
with Phase II at this time because
implementation of the CSO Control
Policy through their NPDES permits
already imposes a significant financial
burden. They requested an extension of
the implementation time frame. They
did not provide ideas on how to unify
the two programs. EPA encourages
permitting authorities to work with
these municipalities as they develop
and begin implementation of their CSO
and storm water management programs.
If both sets of requirements are carefully
coordinated early, a cost-effective wet
weather program can be developed that
will address both CSO and storm water
requirements.
//. Owners/Operators. Several
commenters mentioned the difference
between the existing storm water
application requirement for municipal
operators and the proposed municipal
requirement for owners or operators to
apply. They felt that this inconsistency
is confusing. The preamble to the
existing regulations makes numerous
references to owner/operator so there
was no intent to make a clear distinction
between Phase I and Phase II. Section
122.21(b) states that when the owner
and operator are different, the operator
must obtain the permit. MS4s often have
several operators. The owner may be
responsible for one part of the system
and a regional authority may be
responsible for other aspects. EPA
proposed the "owner or operator"
language to convey this dual
responsibility. However, when the
owner is responsible for some part of a
storm water management plan, it is also
an operator.
EPA has revised the regulation
language to clarify that "an operator"
must apply for a permit. When
responsibilities for the MS4 are shared,
all operators must apply.
c. Regulated Small MS4s
In today's final rule, all small MS4s
located in an urbanized area are
automatically designated as "regulated"
small MS4s provided that they were not
previously designated into the existing
storm water program. Unlike medium
and large MS4s under the existing storm
water regulations, not all small MS4s
are designated under today's final rule.
Therefore, today's rule distinguishes
between "small" MS4s and "regulated
small" MS4s.
EPA's definition of "regulated small
MS4s" in the proposal to today's rule
included mention of incorporated
places and counties. Along with the
definition, EPA included Appendices 6
and 7 to assist in the identification of
areas that would probably require
coverage as "automatically designated"
(Appendix 6) or "potentially
designated" (Appendix 7). The
definition and the appendices raised
many questions about exactly who was
required to comply with the proposed
requirements. Commenters raised issues
about the definition of "incorporated
place" and the status of towns,
townships, and other places that are not
considered incorporated by the Census
Bureau. They also asked about special
districts, regional authorities, MS4s
already regulated, and other questions
in order to clarify the rule's coverage.
EPA has revised § 122.32(a) to clarify
that discharges are regulated under
today's rule if they are from a small MS4
that is in an urbanized area and has not
received a waiver or they are designated
by the permitting authority. Today's
rule does not regulate the county, city,
or town. Today's rule regulates the MS4.
Therefore, even though a county may be
listed in Appendix 6, if that county does
not own or operate the municipal storm
sewer systems, the county does not have
to submit an application or develop a
storm water management program. If
another entity does own or operate an
MS4 within the county, for example, a
regional utility district, that other entity
needs to submit the application and
develop the program.
Some commenters suggested that EPA
should change the rule language to
specifically allow regional authorities to
be the permitted entity and to allow
small MS4s to apply as co-permittees.
EPA believes that the best way to clarify
that regional authorities can be the
primary permitted entity is the change
to § 122.32(a) and the explanation
above. Because EPA assumes that
today's regulation will be implemented
through general permits, MS4s will not
be co-permittees under a general permit
in the same manner as under individual
permits. EPA has added § 122.33(a)(4)
and made a minor change to § 122.35(a)
to clarify that small MS4s can work
together to share the responsibilities of
a storm water management program.
This is discussed further in Section
II.H.S.c.iv below.
The proposed rule stated that when a
county or Federal Indian reservation is
only partially included in an urbanized
area, only MS4s in the urbanized
portion of the county or Federal Indian
reservation would be regulated. In the
rare cases when an incorporated place is
only partially included in the urbanized
area, the entire incorporated place
would be regulated. EPA received
comments asking about towns and
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68751
townships, because they were not
considered to be incorporated areas
according to the Census Bureau's
definition. Would the whole town/
township be covered or only the part of
the town/township in the urbanized
area? States use many different types of
systems in their geographical divisions.
Some towns are similar to incorporated
cities and others are large areas that are
more similar to counties. Some
commenters thought that the urbanized
area boundary was arbitrary, and if part
of a town or county was covered, it all
should be covered. Other commenters
noted that some townships and counties
encompass very large areas of which
only a small portion is urbanized. Due
to the great variety of situations, EPA
has decided that for all geographical
entities, only MS4s in the urbanized
area are automatically designated. The
population densities associated with the
Census Bureau's designation of
urbanized areas provide the basis for
designation of these areas to protect
water quality. This focused designation
provides for consistency and allows for
flexibility on the part of the MS4 and
the permitting authority. In those
situations where an incorporated place
or a town is not all in an "urbanized
area", there is a good possibility that it
is served by more than one MS4. In
those cases where the area is served by
the same MS4, it makes sense to
develop a storm water program for the
whole area. Permitting authorities may
also decide to designate all MS4s within
a county or township, if they believe it
is necessary to protect water quality.
Most operators of MS4s will not need
to independently determine the status of
coverage under today's rule. EPA has
revised the proposed Appendices 6 and
7 to include towns and townships.
Therefore, these appendices will alert
most MS4s as to whether they are likely
to be covered under today's rule.
However, each permitting authority
must make the decision as to who
requires coverage. Most likely, an
illustrative list of the regulated areas
will be published with the general
permit. If not, the operator can contact
its permitting authority or the Bureau of
the Census to find out if their separate
storm sewer systems are within an
urbanized area.
/. Urbanized Area Description. Under
the Bureau of the Census definition of
"urbanized area," adopted by EPA for
the purposes of today's final rule, "an
urbanized area (UA) comprises a place
and the adjacent densely settled
surrounding territory that together have
a minimum population of 50,000
people." The proposal to today's rule
provided the full definition and case
studies to help explain the census
category of "urbanized area." Appendix
2 is a simplified urbanized area
illustration to help demonstrate the
concept of urbanized areas in relation to
today's final rule. The "urbanized area"
is the shaded area that includes within
its boundaries incorporated places, a
portion of a Federal Indian reservation,
portions of two counties, an entire town,
and portions of another town. All small
MS4s located in the shaded area are
covered by the rule, unless and until
waived by the permitting authority. Any
small MS4s located outside of the
shaded area are subject to potential
designation by the permitting authority.
There are 405 urbanized areas in the
United States that cover 2 percent of
total U.S. land area and contain
approximately 63 percent of the nation's
population (see Appendix 3 for a listing
of urbanized areas of the United States
and Puerto Rico). These numbers
include U.S. Territories, although
Puerto Rico is the only territory to have
Census-designated urbanized areas.
Urbanized areas constitute the largest
and most dense areas of settlement. The
purpose of determining an "urbanized
area" is to delineate the boundaries of
development and map the actual built-
up urban area. The Bureau of the Census
geographers liken it to flying over an
urban area and drawing a line around
the boundary of the built-up area as
seen from the air.
Using data from the latest decennial
census, the Census Bureau applies the
urbanized area definition nationwide
(including U.S. Tribes and Territories)
and determines which places and
counties are included within each
urbanized area. For each urbanized area,
the Bureau provides full listings of who
is included, as well as detailed maps
and special CD-ROM files for use with
computerized mapping systems (such as
CIS). Each State's data center receives a
copy of the list, and some maps,
automatically. The States also have the
CD-ROM files and a variety of
publications available to them for
reference from the Bureau of the Census.
In addition, local or regional planning
agencies may have urbanized area files
already. New listings for urbanized
areas based on the 2000 Census will be
available by July/August 2001, but the
more comprehensive computer files will
not be available until late 2001/early
2002.
Additional designations based on
subsequent census years will be
governed by the Bureau of the Census'
definition of an urbanized area in effect
for that year. Based on historical trends,
EPA expects that any area determined
by the Bureau of the Census to be
included within an urbanized area as of
the 1990 Census will not later be
excluded from the urbanized area as of
the 2000 Census. However, it is
important to note that even if this
situation were to occur, for example,
due to a possible change in the Bureau
of the Census' urbanized area definition,
a small MS4 that is automatically
designated into the NPDES program for
storm water under an urbanized area
calculation for any given Census year
will remain regulated regardless of the
results of subsequent urbanized area
calculations.
ii. Rationale for Using Urbanized
Areas. EPA is using urbanized areas to
automatically designate regulated small
MS4s on a nationwide basis for several
reasons: (1) studies and data show a
high correlation between degree of
development/ urbanization and adverse
impacts on receiving waters due to
storm water (U.S. EPA, 1983; Driver et
al., 1985; Pitt.R.E. 1991. "Biological
Effects of Urban Runoff Discharges."
Presented at the Engineering
Foundation Conference: Urban Runoff
and Receiving Systems; An
Interdisciplinary Analysis of Impact,
Monitoring and Management, August
1991. Mt. Crested Butte, CO. American
Society of Civil Engineers, New York.
1992.; Pitt, R.E. 1995. "Biological Effects
of Urban Runoff Discharges," in Storm
water Runoff and Receiving Systems:
Impact, Monitoring, and Assessment.
Lewis Publishers, New York.; Galli, J.
1990. Thermal Impacts Associated with
Urbanization and Storm water
Management Best Management
Practices. Prepared for the Sediment
and Storm water Administration of the
Maryland Department of the
Environment.; Klein, 1979), (2) the
blanket coverage within the urbanized
area encourages the watershed approach
and addresses the problem of "donut-
holes," where unregulated areas are
surrounded by areas currently regulated
(storm water discharges from donut hole
areas present a problem due to their
contributing uncontrolled adverse
impacts on local waters, as well as by
frustrating the attainment of water
quality goals of neighboring regulated
communities), (3) this approach targets
present and future growth areas as a
preventative measure to help ensure
water quality protection, and (4) the
determination of urbanized areas by the
Bureau of the Census allows operators
of small MS4s to quickly determine
whether they are included in the NPDES
storm water program as a regulated
small MS4.
Urbanized areas have experienced
significant growth over the past 50
years. According to EPA calculations
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68752 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
based on Census data from 1980 to
1990, the national average rate of growth
in the United States during that 10-year
period was more than 4 percent. For the
same period, the average growth within
urbanized areas was 15.7 percent and
the average for outside of urbanized
areas was just more than 1 percent. The
new development occurring in these
growing areas can provide some of the
best opportunities for implementing
cost-effective storm water management
controls.
EPA received many comments on the
proposal to designate discharges based
on location within urbanized areas. EPA
considered numerous other approaches,
several of which are discussed in the
proposal to today's final rule. Several
commenters wanted designation to be
based on proven water quality problems
rather thari inclusion in an urbanized
area. One commenter proposed an
approach based on the CWA 303 (d)
listing of impaired waters and the
wasteload allocation conducted under
the TMDL process. (See section ILL. on .
the section 303(d) and TMDL process).
The commenter's proposal would
designate small MS4s on a case-by-case
basis, covering only those discharges
where receiving streams are shown to
have water quality problems,
particularly a failure to meet water
quality standards, including designated
uses. The commenter further described
a non-NPDES approach where a State
would require cost-effective measures
based on a proportionate share under a
waste load allocation, equitably
allocated among all pollutant
contributors. These waste load
allocations would be developed with
input from all stakeholders, and
remedial measures would be
implemented in a phased manner based
on the probability of results and/or
economic feasibility. The States would
then periodically reassess the receiving
streams to determine whether the
remedial measures are working, and if
not, require additional control measures
using the same procedure used to
establish the initial measures. What the
commenter describes is almost a TMDL.
EPA considered a remedial approach
based on water quality impairment and
rejected it for failure to prevent almost
certain degradation caused by urban
storm water. EPA's main concern in
opting not to take a case-by-case
approach to designation was that this
approach would not provide controls for
storm water discharges in receiving
streams until after a site-specific
demonstration of adverse water quality
impact. The commenter's suggestion
would do nothing to prevent pollution
in waters that may be meeting water
quality standards, including supporting
designated uses. The approach would
also rely on identifying storm water
management programs following
comprehensive watershed plans and
TMDL development. In most States,
water quality assessments have
traditionally been conducted for
principal mainstream rivers and their
major tributaries, not all surface waters.
The establishment of TMDLs
nationwide will take many years, and
many States will conduct additional
monitoring to determine water quality
conditions prior to establishing TMDLs.
In addition, a case-by-case approach
would not address the problem of
"donut holes" within urbanized areas
and a lack of consistency among
similarly situated municipal systems
would remain commonplace. After
careful consideration of all comments,
EPA still believes that the approach in
today's rule is the most appropriate to
protect water quality. Protection
includes prevention as well as
remediation.
d. Municipal Designation by the
Permitting Authority
Today's final rule also allows NPDES
permitting authorities to designate MS4s
that should be included in the storm
water program as regulated small MS4s
but are not located within urbanized
areas. The final rule requires, at a
minimum, that a set of designation
criteria be applied to all small MS4s
within a jurisdiction that serves a
population of at least 10,000 and has a
population density of at least 1,000.
Appendix 7 to this preamble provides
an illustrative list of places that the
Agency anticipates meet this criteria. In
addition, any small MS4 may be the
subject of a petition to the NPDES
permitting authority for designation. See
Section II.G, NPDES Permitting
Authority's Role for more details on the
designation and petition processes. EPA
believes that the approach of combining
nationwide and local designation to
determine municipal coverage balances
the potential for significant adverse
impacts on water quality with local
watershed protection and planning
efforts.
e. Waiving the Requirements for Small
MS4s
Today's final rule includes some
flexibility in the nationwide coverage of
all small MS4s located in urbanized
areas by providing the NPDES
permitting authority with the discretion
to waive the otherwise applicable
requirements of the smallest MS4s that
are not causing the impairment of a
receiving water body. Qualifications for
the waiver vary depending on whether
the MS4 serves a population under
1,000 or a population between 1,000
and 10,000. Note that even if a small
MS4 has requirements waived, it can
subsequently be brought back into the
program if circumstances change. See
Section II.G, NPDES Permitting
Authority's Role, for more details on
this process.
3. Municipal Permit Requirements
a. Overview
i. Summary of Permitting Options.
Today's rule outlines six minimum
control measures that constitute the
framework for a storm water discharge
control program for regulated small
MS4s that, when properly implemented,
will reduce pollutants to the maximum
extent practicable (MEP). These six
minimum control measures are
specified in § 122.34(b)-and are
discussed below in section "II.H.S.b,
Program Requirements-Minimum
Control Measures." All operators of
regulated small MS4s are required to
obtain coverage under an NPDES
permit, unless the requirement is
waived by the permitting authority in
accordance with today's rule.
Implementation of § 122.34(b) may be
required either through an individual
permit or, if the State or EPA makes one
available to the facility, through a
general permit. The process for issuing
and obtaining these permits is discussed
below in section "II.H.S.c, Application
Requirements."
As an alternative to implementing a
program that complies with the
requirements of § 122.34, today's rule
provides operators of regulated small
MS4s with the option of applying for an
individual permit under § 122.26(d).
The permit application requirements in
§ 122.26 were originally drafted to apply
to medium and large MS4s. Although
EPA believes that the requirements of
§ 122.34 provide a regulatory option that
is appropriate for most small MS4s, the
operators of some small MS4s may
prefer more individualized
requirements. This alternative
permitting option for regulated small
MS4s that wish to develop their own
program is discussed below in section
"II.H.S.c.iii. Alternative Permit Option."
The second alternative permitting
option for regulated small MS4s is to
become co-permittees with a medium or
large MS4 regulated under § 122.26(d),
as discussed below in section
"II.H.3.C.V. Joint Permit Programs."
ii. Water Quality-Based Requirements.
Any NPDES permit issued under today's
rule must, at a minimum, require the
operator to develop, implement, and
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enforce a storm water management
program designed to reduce the
discharge of pollutants from a regulated
system to the MEP, to protect water
quality, and satisfy the appropriate
water quality requirements of the Clean
Water Act (see MEP discussion in the
following section). Absent evidence to
the contrary, EPA presumes that a small
MS4 program that implements the six
minimum measures in today's rule does
not require more stringent limitations to
meet water quality standards. Proper
implementation of the measures will
significantly improve water quality. As
discussed-further below, however, small
MS4 permittees should modify their
programs if and when available
information indicates that water quality
considerations warrant greater attention
or prescriptiveness in specific
components of the municipal program.
If the program is inadequate to protect
water quality, including water quality
standards, then the permit will need to
be modified to include any more
stringent limitations necessary to
protect water quality.
Regardless of the basis for the
development of the effluent limitations
(whether designed to implement the six
minimum measures or more stringent or
prescriptive limitations to protect water
quality), EPA considers narrative
effluent limitations requiring
implementation of BMPs to be the most
appropriate form of effluent limitations
for MS4s. CWA section 402(p)(3)(b)(iii)
expresses a preference for narrative
rather than numeric effluent limits, for
example, by reference to "management
practices, control techniques and
system, design and engineering
methods, and such other provisions as
the Administrator or the State
determines appropriate for the control
of such pollutants." 33 U.S.C.
1342(p)(3)(B)(iii). EPA determines that
pollutants from wet weather discharges
are most appropriately controlled
through management measures rather
than end-of-pipe numeric effluent
limitations. As explained in the Interim
Permitting Policy for Water Quality-
Based Effluent Limitations in Storm
Water Permits, issued on August 1,1996
[61 FR 43761 (November 26,1996), EPA
believes that the currently available
methodology for derivation of numeric
water quality-based effluent limitations
is significantly complicated when
applied to wet weather discharges from
MS4s (compared to continuous or
periodic batch discharges from most
other types of discharge). Wet weather
discharges from MS4s introduce a high
degree of variability in the inputs to the
models currently available for
derivation of water quality based
effluent limitations, including
assumptions about instream and
discharge flow rates, as well as effluent
characterization. In addition, EPA
anticipates that determining compliance
with any such numeric limitations may
be confounded by practical limitations
in sample collection.
In the first two to three rounds of
permit issuance, EPA envisions that a
BMP-based storm water management
program that implements the six
minimum measures will be the extent of
the NPDES permit requirements for the
large majority of regulated small MS4s.
Because the six measures represent a
significant level of control if properly
implemented, EPA anticipates that a
permit for a regulated small MS4
operator implementing BMPs to satisfy
the six minimum control measures will
be sufficiently stringent to protect water
quality, including water quality
standards, so that additional, more
stringent and/or more prescriptive water
quality based effluent limitations will be
unnecessary.
If a small MS4 operator implements
the six minimum control measures in
§ 122.34(b) and the discharges are
determined to cause or contribute to
non-attainment of an applicable water
quality standard, the operator needs to
expand or better tailor its BMPs within
the scope of the six minimum control
measures. EPA envisions that this
process will occur during the first two
to three permit terms. After that period,
EPA will revisit today's regulations for
the municipal separate storm sewer
program.
If the permitting authority (rather than
the regulated small MS4 operator) needs
to impose additional or more specific
measures to protect water quality, then
that action will most likely be the result
of an assessment based on a TMDL or
equivalent analysis that determines
sources and allocations of pollutant(s) of
concern. EPA believes that the small
MS4's additional requirements, if any,
should be guided by its equitable share
based on a variety of considerations,
such as cost effectiveness, proportionate
contribution of pollutants, and ability to
reasonably achieve wasteload
reductions. Narrative effluent
limitations in the form of BMPs may
still be the best means of achieving
those reductions.
See Section ILL, Water Quality Issues,
for further discussion of this approach
to permitting, consistent with EPA's
interim permitting guidance. Pursuant
to CWA section 510, States
implementing their own NPDES
programs may develop more stringent or
more prescriptive requirements than
those in today's rule.
EPA's interpretation of CWA section
402(p)(3)(B)(iii) was recently reviewed
by the Ninth Circuit in Defenders of
Wildlife, et al v. Browner, No. 98-71080
(September 15,1999). The Court upheld
the Agency's action in issuing five MS4
permits that included water quality-
based effluent limitations. The Court
did, however, disagree with EPA's
interpretation of the relationship
between CWA sections 301 and 402(p).
The Court reasoned that MS4s are not
compelled by section 301(b)(l)(C) to
meet all State water quality standards,
but rather that the Administrator or the
State may rely on section
402(p)(3)(B)(iii) to require such controls.
Accordingly, the Defenders of Wildlife
decision is consistent with the Agency's
1996 "Interim Permitting Policy for
Water Quality-Based Effluent
Limitations in Storm Water Permits."
As noted, the 1996 Policy describes
how permits would implement an
iterative process using BMPs,
assessment, and refocused BMPs,
leading toward attainment of water
quality standards. The ultimate goal of
the iteration would be for water bodies
to support their designated uses. EPA
believes this iterative approach is
consistent with and implements section
301(b)(l)(C), notwithstanding the Ninth
. Circuit's interpretation. As an
alternative to basing these water quality-
based requirements on section
301(b)(l)(C), however, EPA also believes
the iterative approach toward
attainment of water quality standards
represents a reasonable interpretation of
CWA section 402(p)(3)(B)(iii). For this
reason, today's rule specifies that the
"compliance target" for the design and
implementation of municipal storm
water control programs is "to reduce
pollutants to the maximum extent
practicable (MEP), to protect water
quality, and to satisfy the appropriate
water quality requirements of the
CWA." The first component, reductions
to the MEP, would be realized through
implementation of the six minimum
measures. The second component, to
protect water quality, reflects the overall
design objective for municipal programs
based on CWA section 402(p)(6). The
third component, to implement other
applicable water quality requirements of
the CWA, recognizes the Agency's
specific determination under CWA
section 402(p)(3)(B)(iii) of the need to
achieve reasonable further progress
toward attainment of water quality
standards according to the iterative BMP
process, as well as the determination
that State or EPA officials who establish
TMDLs could allocate waste loads to
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68754 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
MS4s, as they would to other point
sources.
EPA does not presume that water
quality will be protected if a small MS4-
elects not to implement all of the six
minimum measures and instead applies
for alternative permit limits under
§ 122.26(d). Operators of such small
MS4s that apply for alternative permit
limits under § 122.26(d) must supply
additional information through
individual permit applications so that
the permit writer can determine
whether the proposed program reduces
pollutants to the MEP and whether any
other provisions are appropriate to
protect water quality and satisfy the
appropriate water quality requirements
of the Clean Water Act.
iii. Maximum Extent Practicable.
Maximum extent practicable (MEP) is
> the statutory standard that establishes
the level of pollutant reductions that
operators of regulated MS4s must
achieve. The CWA requires that NPDES
permits for discharges from MS4s "shall
require controls to reduce the discharge
of pollutants to the maximum extent
practicable, including management
practices, control techniques and
system, design and engineering
methods." CWA Section
402(p)(3)(B)(iii). This section also calls
for "such other provisions as the [EPA]
Administrator or the State determines
appropriate for the control of such
pollutants." EPA interprets this
standard to apply to all MS4s, including
both existing regulated (large and
medium) MS4s, as well as the small
MS4s regulated under today's rule.
For regulated small MS4s under
today's rule, authorization to discharge
may be under either a general permit or
individual permit, but EPA anticipates
and expects that general permits will be
the most common permit mechanism.
The general permit will explain the
steps necessary to obtain permit
authorization. Compliance with the
conditions of the general permit and the
series of steps associated with
identification and implementation of
the minimum control measures will
satisfy the MEP standard.
Implementation of the MEP standard
under today's rule will typically require
the permittee to develop and implement
appropriate BMPs to satisfy each of the
required six minimum control
measures.
In issuing the general permit, the
NPDES permitting authority will
establish requirements for each of the
minimum control measures. Permits
typically will require small MS4
permittees to identify in their NOI the
BMPs to be performed and to develop
the measurable goals by which
implementation of the BMPs can be
assessed. Upon receipt of the NOI from
a small MS4 operator, the NPDES
permitting authority will have the
opportunity to review the NOI to verify
that the identified BMPs and
measurable goals are consistent with the
requirement to reduce pollutants under
the MEP standard, to protect water
quality, and to satisfy the appropriate
water quality requirements of the Clean
Water Act. If necessary, the NPDES
permitting authority may ask the
permittee to revise their mix of BMPs,
for example, to better reflect the MEP
pollution reduction requirement. Where
the NPDES permit is not written to
implement the minimum control
measures specified under § 122.34(b),
for example in the case of an individual
permit under § 122.33(b)(2)(ii), the MEP
standard will be applied based on the
best professional judgment of the permit
writer.
Commenters argued that MEP is, as
yet, an undefined term and that EPA
needs to further clarify the MEP
standards by providing a regulatory
definition that includes recognition of
cost considerations and technical
feasibility. Commenters argued that,
without a definition, the regulatory
community is not adequately on notice
regarding the standard with which they
need to comply. EPA disagrees that
affected MS4 permittees will lack notice
of the applicable standard. The
framework for the small MS4 permits
described in this notice provides EPA's
interpretation of the standard and how
it should be applied.
EPA has intentionally not provided a
precise definition of MEP to allow
maximum flexibility in MS4 permitting.
MS4s need the flexibility to optimize
reductions in storm water pollutants on
a location-by-location basis. EPA
envisions that this evaluative process
will consider such factors as conditions
of receiving waters, specific local
concerns, and other aspects included in
a comprehensive watershed plan. Other
factors may include MS4 size, climate,
implementation schedules, current
ability to finance the program, beneficial
uses of receiving water, hydrology,
geology, and capacity to perform
operation and maintenance.
The pollutant reductions that
represent MEP may be different for each
small MS4, given the unique local
hydrologic and geologic concerns that
may exist and the differing possible
pollutant control strategies. Therefore,
each permittee will determine
appropriate BMPs to satisfy each of the
six minimum control measures through
an evaluative process. Permit writers
may evaluate small MS4 operator's
proposed storm water management
controls to determine whether reduction
of pollutants to the MEP can be
achieved with the identified BMPs.
EPA envisions application of the MEP
standard as an iterative process. MEP
should continually adapt to current
conditions and BMP effectiveness and
should strive to attain water quality
standards. Successive iterations of the
mix of BMPs and measurable goals will
be driven by the objective of assuring
maintenance of water quality standards.
If, after implementing the six minimum
control measures there is still water
quality impairment associated with
discharges from the MS4, after
successive permit terms the permittee
will need to expand or better tailor its
BMPs within the scope of the six
minimum control measures for each
subsequent permit. EPA envisions that
this process may take two to three
permit terms.
One commenter observed that MEP is
not static and that if the six minimum
control measures are not achieving the
necessary water quality improvements,
then an MS4 should be expected to
revise and, if necessary, expand its
program. This concept, it is argued,
must be clearly part of the definition of
MEP and thus incorporated into the
binding and operative aspects of the
rule. As is explained above, EPA
believes that it is. The iterative process
described above is intended to be
sensitive to water quality concerns. EPA
believes that today's rule contains
provisions to implement an approach
that is consistent with this comment.
b. Program Requirements'Minimum
Control Measures
A regulated small MS4 operator must
develop and implement a storm water
management program designed to
reduce the discharge of pollutants from
their MS4 to protect water quality. The
storm water management program must
include the following six minimum
measures.
/. Public Education and Outreach on
Storm Water Impacts. Under today's
final rule, operators of small MS4s must
implement a public education program
to distribute educational materials to the
community or conduct equivalent
outreach activities about the impacts of
storm water discharges on water bodies
and the steps to reduce storm water
pollution. The public education
program should inform individuals and
households about the problem and the
steps they can take to reduce or prevent
storm water pollution.
EPA believes that as the public gains
a greater understanding of the storm
water program, the MS4 is likely to gain
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more support for the program (including
funding initiatives). In addition,
compliance with the program will
probably be greater if the public
understands the personal
responsibilities expected of them. Well-
informed citizens can act as formal or
informal educators to further
disseminate information and gather
support for the program, thus easing the
burden on the municipalities to perform
all educational activities.
MS4s are encouraged to enter into
partnerships with their States in
fulfilling the public education
requirement. It may be more cost-
effective to utilize a State education
program instead of numerous MS4s
developing their own programs. MS4
operators are also encouraged to work
with other organizations (e.g.,
environmental, nonprofit and industry
organizations) that might be able to
assist in fulfilling this requirement.
The public education program should
be tailored, using a mix of locally
appropriate strategies, to target specific
audiences and communities
(particularly minority and
disadvantaged communities). Examples
of strategies include distributing
brochures or fact sheets, sponsoring
speaking engagements before
community groups, providing public
service announcements, implementing
educational programs targeted at school
age children, and conducting
community-based projects such as storm
drain stenciling, and watershed and
beach cleanups. Operators of MS4s may
use storm water educational information
provided by the State, Tribe, EPA, or
environmental, public interest, trade
organizations, or other MS4s. Examples
of successful public education efforts
concerning polluted runoff can be found
in many State nonpoint source pollution
control programs under CWA section
319.
The public education program should
inform individuals and households
about steps they can take to reduce
storm water pollution, such as ensuring
proper septic system maintenance,
ensuring the use and disposal of
landscape and garden chemicals
including fertilizers and pesticides,
protecting and restoring riparian
vegetation, and properly disposing of
used motor oil or household hazardous
wastes. Additionally, the program could
inform individuals and groups on how
to become involved in local stream and
beach restoration activities as well as
activities coordinated by youth service
and conservation corps and other
citizen groups. Finally, materials or
outreach programs should be directed
toward targeted groups of commercial,
industrial, and institutional entities
likely to have significant storm water
impacts. For example, MS4 operators
should provide information to
restaurants on the impact of grease
clogging storm drains and to auto
garages on the impacts of used oil
discharges.
EPA received comments from
representatives of State DOTs and U.S.
Department of Defense (DOD)
installations seeking exemption from
the public education requirement.
While today's rule does not exempt
DOTs and military bases from the user
education requirement, the Agency
believes the flexibility inherent in the
Rule addresses many of the concerns
expressed by these commenters.
Certain DOT representatives
commented that if their agencies were
not exempt from the user education
measure's requirements, they should at
least be allowed to count DOT employee
education as an adequate substitute.
EPA supports the use of existing
materials and programs, granted such
materials and programs meet the rule's
requirement that the MS4 user
community (i.e., the public) is also
educated concerning the impacts of
storm water discharges on water bodies
and the steps to reduce storm water
pollution.
Finally, certain DOD representatives
requested that "public," as applied to
their installations, be defined as the
resident and employee populations
within the fence line of the facility. EPA
agrees that the education effort should
be directed toward those individuals
who frequent the federally owned land
(i.e., residents and individuals who
come there to work and use the MS4
facilities).
EPA also received a number of
comments from municipalities stating
that education would be more thorough
and cost effective if accomplished by
EPA on the national level. EPA believes
that a collaborative State and local
approach, in conjunction with
significant EPA technical support, will
best meet the goal of targeting, and
reaching, specific local audiences. EPA
technical support will include a tool
box which will contain fact sheets,
guidance documents, an information
clearinghouse, and training and
outreach efforts.
Finally, EPA received comments
expressing concern that the public
education program simply encourages
the distribution of printed material. EPA
is sensitive to this concern. Upon
evaluation, the Agency made changes to
the proposal's language for today's rule.
The language has been changed to
reflect EPA's belief that a successful
program is one that includes a variety of
strategies locally designed to reach
specific audiences.
ii. Public Involvement/Participation.
Public involvement is an integral part of
the small MS4 storm water program.
Accordingly, today's final rule requires
that the municipal storm water
management program must comply with
applicable State and local public notice
requirements. Section 122.34(b)(2)
recommends a public participation
process with efforts to reach out and
engage all economic and ethnic groups.
EPA believes there are two important
reasons why the public should be
allowed and encouraged to provide
valuable input and assistance to the
MS4's program.
First, early and frequent public
involvement can shorten
implementation schedules and broaden
public support for a program.
Opportunities for members of the public
to participate in program development
and implementation could include
serving as citizen representatives on a
local storm water management panel,
attending public hearings, working as
citizen volunteers to educate other
individuals about the program, assisting
in program coordination with other pre-
existing programs, or participating in
volunteer monitoring efforts. Moreover,
members of the public may be less
likely to raise legal challenges to a
MS4's storm water program if they have
been involved in the decision making
process and program development and,
therefore, internalize personal
responsibility for the program
themselves.
Second, public participation is likely
to ensure a more successful storm water
program by providing valuable expertise
and a conduit to other programs and
governments. This is particularly
important if the MS4's storm water
program is to be implemented on a
watershed basis. Interested stakeholders
may offer to volunteer in the
implementation of all aspects of the
program, thus conserving limited
municipal resources.
EPA recognizes that there are a
number of challenges associated with
public involvement. One challenge is in
engaging people in the public meeting
and program design process. Another
challenge is addressing conflicting
viewpoints. Nevertheless, EPA strongly
believes that these challenges can be
addressed by use of an aggressive and
inclusive program. Section U.K.
provides further discussion on public
involvement.
A number of municipalities sought
clarification from EPA concerning what
the public participation program must
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68756 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
actually include. In response, the actual
requirements are minimal, but the
Agency's recommendations are more
comprehensive. The public
participation program must only comply
with applicable State and local public
notice requirements. The remainder of
the preamble, as well as the Explanatory
Note accompanying the regulatory text,
provide guidance to the MS4s
concerning what elements a successful
and inclusive program should include.
EPA will provide technical support as
part of the tool box (i.e., providing
model public involvement programs,
conducting public workshops, etc.) to
assist MS4 operators meet the intent of
this measure.
Finally, the Agency encourages MS4s
to seek public participation prior to
submitting an NOI. For example, public
participation at this stage will allow the
MS4 to involve the public in developing
the BMPs and measurable goals for their
NOI.
Hi. Illicit Discharge Detection and
Elimination. Discharges from small
MS4s often include wastes and
wastewater from non-storm water
"illicit" discharges. Illicit discharge is
defined at 40 CFR 122.26(b)(2) as any
discharge to a municipal separate storm
sewer that is not composed entirely of
storm water, except discharges pursuant
to an NPDES permit and discharges
resulting from fire fighting activities. As
detailed below, other sources of non-
storm water, that would otherwise be
considered illicit discharges, do not
need to be addressed unless the operator
of the MS4 identifies one or more of
them as a significant source of
pollutants into the system. EPA's
Nationwide Urban Runoff Program
(NURP) indicated that many storm
water outfalls still discharge during
substantial dry periods. Pollutant levels
in these dry weather flows were shown
to be high enough to significantly
degrade receiving water quality. Results
from a 1987 study conducted in
Sacramento, California, revealed that
slightly less than one-half of the water
discharged from a municipal separate
storm sewer system was not directly
attributable to precipitation runoff (U.S.
Environmental Protection Agency,
Office of Research and Development.
1993. Investigation of Inappropriate
Pollutant Entries Into Storm Drainage
Systems—A User's Guide. Washington,
DC EPA 600/R-92/238.) A significant
portion of these dry weather flows
results from illicit and/or inappropriate
discharges and connections to the
municipal separate storm sewer system.
Illicit discharges enter the system
through either direct connections (e.g.,
wastewater piping either mistakenly or
deliberately connected to the storm
drains) or indirect connections (e.g.,
infiltration into the storm drain system
or spills collected by drain inlets).
Under the existing NPDES program
for storm water, permit applications for
large and medium MS4s are to include
a program description for effective
prohibition against non-storm water
discharges into their storm sewers (see
40 CFR 122.26 (d)(l)(v)(B) and
(d)(l)(iv)(B)). Further, EPA believes that
in implementing municipal storm water
management plans under these permits,
large and medium MS4 operators
generally found their illicit discharge
detection and elimination programs to
be cost-effective. Properly implemented
programs also significantly improved
water quality.
In today's rule, any NPDES permit
issued to an operator of a regulated
small MS4 must, at a minimum, require
the operator to develop, implement and
enforce an illicit discharge detection
and elimination program. Inclusion of
this measure for regulated small MS4s is
consistent with the "effective
prohibition" requirement for large and
medium MS4s. Under today's rule, the
NPDES permit will require the operator
of a regulated small MS4 to: (1) Develop
(if not already completed) a storm sewer
system map showing the location of all
outfalls, and names and location of all
waters of the United States that receive
discharges from those outfalls; (2) to the
extent allowable under State, Tribal, or
local law, effectively prohibit through
ordinance, or other regulatory
mechanism, illicit discharges into the
separate storm sewer system and
implement appropriate enforcement
procedures and actions as needed; (3)
develop and implement a plan to detect
and address illicit discharges, including
illegal dumping, to the system; and (4)
inform public employees, businesses,
and the general public of hazards
associated with illegal discharges and
improper disposal of waste.
The illicit discharge and elimination
program need only address the
following categories of non-storm water
discharges if the operator of the small
MS4 identifies them as significant
contributors of pollutants to its small
MS4: water line flushing, landscape
irrigation, diverted stream flows, rising
ground waters, uncontaminated ground
water infiltration (as defined at 40 CFR
35.2005(20)), uncontaminated pumped
ground water, discharges from potable
water sources, foundation drains, air
conditioning condensation, irrigation
water, springs, water from crawl space
pumps, footing drains, lawn watering,
individual residential car washing,
flows from riparian habitats and
wetlands, dechlorinated swimming pool
discharges, and street wash water
(discharges or flows from fire fighting
activities are excluded from the
definition of illicit discharge and only
need to be addressed where they are
identified as significant sources of
pollutants to waters of the United
States). If the operator of the MS4
identifies one or more of these
categories of sources to be a significant
contributor of pollutants to the system,
it could require specific controls for that
category of discharge or prohibit the
discharges completely.
Several comments were received on
the mapping requirements of the
proposal. Most comments said that more
flexibility should be given to the MS4s
to determine their mapping needs, and
that resources could be better spent in
addressing problems once the illicit
discharges are detected. EPA reviewed
the mapping requirements in the
proposed rule and agrees that some of
the information is not necessary in order
to begin an illicit discharge detection
and elimination program. Today's rule
requires a map or set of maps that show
the locations of all outfalls and names
and locations of receiving waters.
Knowing the locations of outfalls and
receiving waters are necessary to be able
to conduct dry weather field screening
for non-storm water flows and to
respond to illicit discharge reports from
the public. EPA recommends that the
operator collect any existing
information on outfall locations (e.g.,
review city records, drainage maps,
storm drain maps), and then conduct
field surveys to verify the locations. It
will probably be necessary to "walk"
(i.e. wade small receiving waters or use
a boat for larger receiving waters) the •
streambanks and shorelines, and it may
take more than one trip to locate all
outfalls. A coding system should be
used to mark and identify each outfall.
MS4 operators have the flexibility to
determine the type (e.g. topographic,
CIS, hand or computer drafted) and size
of maps which best meet their needs.
The map scale should be such that the
outfalls can be accurately located. Once
an illicit discharge is detected at an
outfall, it may be necessary to map that
portion of the storm sewer system
leading to the outfall in order to locate
the source of the discharge.
Several comments requested
clarification of the requirement to
develop and implement a plan to detect
and eliminate illicit discharges. EPA
recommends that plans include
procedures for the following: locating
priority areas; tracing the source of an
illicit discharge; removing the source of
the discharge; and program evaluation
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68757
and assessment. EPA recommends that
MS4 operators identify priority areas
(/.e., problems areas) for more detailed
screening of their system based on
higher likelihood of illicit connections
(e.g., areas with older sanitary sewer
lines), or by conducting ambient
sampling to locate impacted reaches.
Once priority areas are identified, EPA
recommends visually screening outfalls
during dry weather and conducting field
tests, where flow is occurring, of
selected chemical parameters as
indicators of the discharge source.
EPA's manual for investigation of
inappropriate pollutant entries into the
storm drainage system (EPA, 1993)
suggests the following parameter list:
specific conductivity, fluoride and/or
hardness concentration, ammonia and/
or potassium concentration, surfactant
and/or fluorescence concentration,
chlorine concentration, pH and other
chemicals indicative of industrial
sources. The manual explains why each
parameter is a good indicator and how
the information can be used to
determine the type of source flow. The
Agency is not recommending that
fluoride and chlorine, generally used to
locate potable water discharges, be
addressed under this program, therefore
a short list of parameters may include
conductivity, ammonia, surfactant and
pH. Some MS4s have found it useful to
measure for fecal coliform or E. coli in
their testing program. Observations of
physical characteristics of the discharge
are also helpful such as flow rate,
temperature, odor, color, turbidity,
floatable matter, deposits and stains,
and vegetation.
The implementation plan should also
include procedures for tracing the
source of an illicit discharge. Once an
illicit discharge is detected and field
tests provide source characteristics, the
next step is to determine the actual
location of the source. Techniques for
tracing the discharge to its place of
origin may include: following the flow
up the storm drainage system via
observations and/or chemical testing in
manholes or in open channels;
televising storm sewers; using infrared
and thermal photography; conducting
smoke or dye tests.
The implementation plan should also
include procedures for removing the
source of the illicit discharge. The first
step may be to notify the property
owner and specify a length of time for
eliminating the discharge. Additional
notifications and escalating legal actions
should also be described in this part of
the plan.
Finally, the implementation plan
should include procedures for program
evaluation and assessment. Procedures
could include documentation of actions
taken to locate and eliminate illicit
discharges such as: number of outfalls
screened, complaints received and
corrected, feet of storm sewers televised,
numbers of discharges and quantities of
flow eliminated, number of dye or
smoke tests conducted. Appropriate
records of such actions should be kept
and should be submitted as part of the
annual reports for the first permit term,
as specified by the permitting authority
(reports only need to be submitted in
years 2 and 4 in later permits). For more
on reporting requirements, see
§122.34(g).
EPA received comments regarding an
MS4's legal authority beyond its
jurisdictional boundaries to inspect or
take enforcement against illicit
discharges. EPA recognizes that illicit
flows may originate in one jurisdiction
and cross into one or more jurisdictions
before being discharged at an outfall. In
such instances, EPA expects the MS4
that detects the illicit flow to trace it to
the point where it leaves their
jurisdiction and notify the adjoining
MS4 of the flow, and any other physical
or chemical information. The adjoining
MS4 should then trace it to the source
or to the location where it enters their
jurisdiction. The process of notifying
the adjoining MS4 should continue
until the source is located and
eliminated. In addition, because any
non-storm water discharge to waters of
the U.S. through an MS4 is subject to
the prohibition against unpermitted
discharges pursuant to CWA section 301
(a), remedies are available under the
federal enforcement provisions of CWA
sections 309 and 505.
EPA requested and received
comments regarding the prohibition and
enforcement provision for this
minimum measure. Commenters
specifically questioned the proposal that
the operator only has to implement the
appropriate prohibition and
enforcement procedures "to the extent
allowable under State of Tribal law."
They raised concerns that by qualifying
prohibition and enforcement procedures
in this manner, the operator could
altogether ignore this minimum measure
where affirmative legal authority did not
exist. Comments suggested that EPA
require States to grant authority to those
municipalities where it did not exist.
Other comments, however, stated that
municipalities cannot exercise legal
authority not granted to them under
State law, which varies considerably
from one State to another. EPA has no
intention of directing State legislatures
on how to allocate authority and
responsibility under State law. As noted
above, there is at least one remedy (the
federal CWA) to control non-storm
water discharges through MS4s. If State
law prevents political subdivisions from
controlling discharges through storm
sewers, EPA anticipates common sense
will prevail to provide those MS4
operators with the ability to meet the
requirements applicable for their
discharges.
One comment reinforced the
importance of public information and
education to the success of this
measure. EPA agrees and suggests that
MS4 operators consider a variety of
ways to inform and educate the public
which could include storm drain
stenciling; a program to promote,
publicize, and facilitate public reporting
of illicit connections or discharges; and
distribution of visual and/or printed
outreach materials. Recycling and other
public outreach programs could be
developed to address potential sources
of illicit discharges, including used
motor oil, antifreeze, pesticides,
herbicides, and fertilizers.
EPA received comments that State
DOT's lack authority to implement this
measure. EPA believes that most DOTs
can implement most parts of this
measure. If a DOT does not have the
necessary legal authority to implement
any part of this measure, EPA
encourages them to coordinate their
storm water management efforts with
the surrounding MS4s and other State
agencies. Many DOTs that are regulated
under Phase I of this program are co-
permittees with the local regulated MS4.
Under today's rule, DOTs can use any
of the options of § 122.35 to share their
storm water management
responsibilities.
EPA received comments requesting
clarification of various terms such as
"outfall" and "illicit discharge." One
comment asked EPA to reinforce the
point that a "ditch" could be considered
an outfall. The term "outfall" is defined
at 40 CFR 122.26(b)(9) as "a point
source at the point where a municipal
separate storm sewer discharges to
waters of the United States * * *". The
term municipal separate storm sewer is
defined at 40 CFR § 122.26(b)(8) as "a
conveyance or system of conveyances
(including roads with drainage systems,
municipal streets, catch basins, curbs,
gutters, ditches, man-made channels, or
storm drains) * * *". Following the
logic of these definitions, a "ditch" may
be part of the municipal separate storm
sewer, and at the point where the ditch
discharges to waters of the United
States, it would be an outfall. As with
any determination about jurisdictional
provisions of the CWA, however, final
decisions require case specific
evaluations of fact.
_
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One commenter specifically requested
clarification on the relationship between
the term "illicit discharge" and non-
storm water discharges from fire
fighting. The comment suggested that it
would be impractical to attempt to
determine whether the flow from a
specific fire (i.e., during a fire) is a
significant source of pollution. EPA
intends that MS4s will address all
allowable non-storm water flows
categorically rather than individually. If
an MS4 is concerned that flows from
fire fighting are, as a category,
contributing substantial amounts of
pollutants to their system, they could
develop a program to address those
flows prospectively. The program may
include an analysis of the flow from
several sources, steps to minimize the
pollutant contribution, and a plan to
work with the sources of the discharge
to minimize any adverse impact on
water quality. During the development
of such a program, the MS4 may
determine that only certain types of
flows within a particular category are a
concern, for example, fire fighting flows
at industrial sites where large quantities
of chemicals are present. In this
example, a review of existing
procedures with the fire department
and/or hazardous materials team may
reveal weaknesses or strengths
previously unknown to the MS4
operator.
EPA received comments requesting
modifications to the rule to include on-
site sewage disposal systems (i.e., septic
systems) in the scope of the illicit
discharge program. On-site sewage
disposal systems that flow into storm
drainage systems are within the
definition of illicit discharge as defined
by the regulations. Where they are
found to be the source of an illicit
discharge, they need to be eliminated
similar to any other illicit discharge
source. Today's rule was not modified
to include discharges from on-site
sewage disposal systems specifically
because those sources are already
within the scope of the existing
definition of illicit discharge.
iv. Construction Site Storm Water
Runoff Control. Over a short period of
time, storm water runoff from
construction site activity can contribute
more pollutants, including sediment, to
a receiving stream than had been
deposited over several decades (see
section I.E.3). Storm water runoff from
construction sites can include
pollutants other than sediment, such as
phosphorus and nitrogen, pesticides,
petroleum derivatives, construction
chemicals, and solid wastes that may
become mobilized when land surfaces
are disturbed. Generally, properly
implemented and enforced construction
site ordinances effectively reduce these
pollutants. In many areas, however, the
effectiveness of ordinances in reducing
pollutants is limited due to inadequate
enforcement or incomplete compliance
with such local ordinances by
construction site operators (Paterson,
R.G. 1994. "Construction Practices: The
Good, the Bad, and the Ugly."
Watershed Protection Techniques 1(2)).
Today's rule requires operators of
regulated small MS4s to develop,
implement, and enforce a pollutant
control program to reduce pollutants in
any storm water runoff from
construction activities that result in
land disturbance of 1 or more acres (see
§ 122.34(b)(4)). Construction activity on
sites disturbing less than one acre must
be included in the program if the
construction activity is part of a larger
common plan of development or sale
that would disturb one acre or more.
The construction runoff control
program of the regulated small MS4
must include an ordinance or other
regulatory mechanism to require erosion
and sediment controls to the extent
practicable and allowable under State,
Tribal or local law. The program also
must include sanctions to ensure
compliance (for example, non-monetary
penalties, fines, bonding requirements,
and/or permit denials for non-
compliance). The program must also
include, at a minimum: requirements for
construction site operators to implement
appropriate erosion and sediment
control BMPS, such as silt fences,
temporary detention ponds and
diversions; procedures for site plan
review by the small MS4 which
incorporate consideration of potential
water quality impacts; requirements to
control other waste such as discarded
building materials, concrete truck
washout, chemicals, litter, and sanitary
waste at the construction site that may
adversely impact water quality;
procedures for receipt and consideration
of information submitted by the public
to the MS4; and procedures for site
inspection and enforcement of control
measures by the small MS4.
Today's rule provides flexibility for
regulated small MS4s by allowing them
to exclude from their construction
pollutant control program runoff from
those construction sites for which the
NPDES permitting authority has waived
NPDES storm water small construction
permit requirements. For example, if the
NPDES permitting authority waives
permit coverage for storm water
discharges from construction sites less
than 5 acres in areas where the rainfall
erosivity factor is less than 5, then the
regulated small MS4 does not have to
include these sites in its storm water
management program. Even if
requirements for a discharge from a
given construction site are waived by
the NPDES permitting authority,
however, the regulated small MS4 may
still chose to control those discharges
under the MS4's construction pollutant
control program, particularly where
such discharges may cause siltation
problems in storm sewers. See Section
Il.I.l.b for more information on
construction waivers by the permitting
authority.
Some commenters suggested that the
proposed construction minimum
measure requirements went beyond the
permit application requirements
concerning construction for medium
and large MS4s. In response, EPA has
made changes to the proposed measure
so that it more closely resembles the
MS4 permit application requirements in
existing regulations. For example, as
described below, the Agency revised the
proposed requirements for "pre-
construction review of site management
plans" to require "procedures for site
plan review."
One commenter expressed concerns
that addressing runoff from construction
sites within urbanized areas (through
the small MS4 program) differently from
construction sites outside urbanized
areas (which will not be covered by the
small MS4 program) will encourage
urban sprawl. Today's rule, together
with the existing requirements, requires
all construction greater than or equal to
1 acre, unless waived, to be covered by
an NPDES permit whether it is located
inside or outside of an urbanized area
(see § 122.26(b)(15)). Today's rule does
not require small MS4s to control runoff
from construction sites more stringently
or prescriptively than is required for
construction site runoff outside
urbanized areas. Therefore, today's rule
imposes no substantively different
onsite controls on runoff of storm water
from construction sites in urbanized
areas than from construction sites
outside of urbanized areas.
One commenter recommended that
the small MS4 construction site storm
water runoff control program address all
storm water runoff from construction
sites, not just the runoff into the MS4.
The commenter also believed that MS4s
should provide clear, objective
standards for all construction sites. EPA
agrees. Because today's rule only
regulates discharges from the MS4, the
construction pollutant control measure
only requires small MS4 operators to
control runoff into its system. As a
practical matter, however, EPA
anticipates that MS4 operators will find
that regulation of all construction site
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runoff, whether they runoff into the
MS4 or not, will prove to be the most
simple and efficient program. The
Agency may provide more specific
criteria for construction site BMPs in the
forthcoming rule being developed under
CWA section 402(m). See section II.D.l
of today's rule.
One commenter stated that there is no
need for penalties at the local level by
the small MS4 because the CWA already
imposes sufficient penalties to ensure
compliance. EPA disagrees and believes
that enforcement and compliance at the
local level is both necessary and
preferable. Examples of sanctions, some
not available under the CWA, include
non-monetary penalties, monetary fines,
bonding requirements, and denial of
future or other local permits.
One commenter recommended that
EPA should not include the requirement
to control pollutants other than
sediment from construction sites in this
measure. EPA disagrees with this
comment. The requirement is to control
waste that "may cause adverse impacts
on water quality." Such wastes may
include discarded building materials,
concrete truck washout, chemicals,
pesticides, herbicides, litter, and
sanitary waste. These wastes, when
exposed to and mobilized by storm
water, can contribute to water quality
impairment.
The proposed rule required
"procedures for pre-construction review
of site management plans." EPA
requested comment on expanding this
provision to require both review and
approval of construction site storm
\vater plans. Many commenters
expressed the concern that review and
approval of site plans is not only costly
and time intensive, but may
unnecessarily delay construction
projects and unduly burden staff who
administer the local program. In
addition, some commenters expressed
confusion whether EPA proposed pre-
construction review for all site
management plans or only higher
priority sites. To address these
comments, and be consistent with the
permit application requirements for
larger MS4s, EPA changed "procedures
for pre-construction review of site
management plans" to "procedures for
site plan review." Today's rule requires
the small MS4 to develop procedures for
site plan review so as to incorporate
consideration of adverse potential water
quality impacts. Procedures should
include review of site erosion and
sediment control plans, preferably
before construction activity begins on a
site. The objective is for the small MS4
operator and the construction site
operator to address storm water runoff
from construction activity early in the
project design process so that potential
consequences to the aquatic
environment can be assessed and
adverse water quality impacts can be
minimized or eliminated.
One commenter requested that EPA
delete the requirement for "procedures
for receipt and consideration of
information submitted by the public"
because it went beyond existing storm
water requirements. Another commenter
stated that establishing a separate
process to respond to public inquiries
on a project is a burden to small
communities, especially if the project
has gone through an environmental
review. One commenter requested
clarification of this provision. EPA has
retained this requirement in today's
final rule to require some formality in
the process for addressing public
inquiries regarding storm water runoff
from construction activities. EPA does
not intend that small MS4s develop a
separate, burdensome process to
respond to every public inquiry. A small
MS4 could, for example, simply log
public complaints on existing storm
water runoff problems from
construction sites and pass that
information on to local inspectors. The
inspectors could then investigate
complaints based on the severity of the
violation and/or priority area.
One commenter believed that the
proposed requirement of "regular
inspections during construction" would
require every construction project to be
inspected more than once by the small
MS4 during the term of a construction
proji-ct. EPA has deleted the reference to
"n-giilar inspections." Instead, the small
MS4 will be required to "develop
procedures for site inspection and
enforcement of control measures."
Procedures could include steps to
identify priority sites for inspection and
enforcement based on the nature and
extent of the construction activity,
topography, and the characteristics of
soils and receiving water quality.
In order to avoid duplication of small
MS4 construction requirements with
NPDES construction permit
requirements, today's rule adds
§ 122.44(s) to recognize that the NPDES
permitting authority can incorporate
qualifying State, Tribal, or local erosion
and sediment control requirements in
NPDES permits for construction site
discharges. For example, a construction
site operator who complies with MS4
construction pollutant control programs
that are referenced in the NPDES
construction permit would satisfy the
requirements of the NPDES permit. See
section Il.I.l.d for more information on
incorporating qualifying programs by
reference into NPDES construction
permits. This provision has no impact
on, or direct relation to, the small MS4
operator's responsibilities under the
construction site storm water runoff
control minimum measure. Conversely,
under § 122.35(b), the permitting
authority may recognize in the MS4's
permit that another governmental entity,
or the permitting authority itself, is
responsible for implementing one or
more of the minimum measures
(including construction site storm water
runoff control), and not include this
measure in the small MS4's permit. In
this case, the other governmental
entity's program must satisfy all of the
requirements of the omitted measure.
v. Post-Construction Storm Water
Management in New Development and
Redevelopment. The NURP study and
more recent investigations indicate that
prior planning and designing for the
minimization of pollutants in storm
water discharges is the most cost-
effective approach to storm water
quality management. Reducing
pollutant concentrations in storm water
after the discharge enters a storm sewer
system is often more expensive and less
efficient than preventing or reducing
pollutants at the source. Increased
human activity associated with
development often results in increased
pollutant loading from storm water
discharges. If potential adverse water
quality impacts are considered from the
beginning stages of a project, new
development and redevelopment
provides more opportunities for water
quality protection. For example,
minimization of impervious areas,
maintenance or restoration of natural
infiltration, wetland protection, use of
vegetated drainage ways, and use of
riparian buffers have been shown to
reduce pollutant loadings in storm
water runoff from developed areas. EPA
encourages operators of regulated small
MS4s to identify specific problem areas
within their jurisdictions and initiate
innovative solutions and designs to
focus attention on those areas through
local planning.
In today's rule at § 122.34(b)(5),
NPDES permits issued to an operator of
a regulated small MS4 will require the
operator to develop, implement, and
enforce a program to address storm
water runoff from new development and
redevelopment projects that result in
land disturbance of greater than or equal
to one acre, including projects less than
one acre that are part of a larger
common plan of development or sale,
that discharge into the MS4.
Specifically, the NPDES permit will
require the operator of a regulated small
MS4 to: (1) Develop and implement
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68760 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
strategies which include a combination
of structural and/or non-structural best
management practices (BMPs)
appropriate for the community; (2) use •
an ordinance, or other regulatory
mechanism to address post-construction
runoff from new development and
redevelopment projects to the extent
allowable under State, Tribal or local
law; (3) ensure adequate long-term
operation and maintenance of BMPs;
and (4) ensure that controls are in place
that would minimize water quality
impacts. EPA intends the term
"redevelopment" to refer to alterations
of a property that change the "footprint"
of a site or building in such a way that
results in the disturbance of equal to or
greater than 1 acre of land. The term is
not intended to include such activities
as exterior remodeling, which would
not be expected to cause adverse storm
water quality impacts and offer no new
opportunity for storm water controls.
EPA received comments requesting
guidance and clarification of the rule
requirements. The scope of the
comments ranged from general requests
for more details on how MS4 operators
should accomplish the four
requirements listed above, to specific
requests for information regarding
transfer of ownership for structural
controls, as well as ongoing
responsibility for operation and
maintenance. By the term
"combination" of BMPs, EPA intends a
combination of structural and/or non-
structural BMPs. For this requirement,
the term "combination" is meant to
emphasize that multiple BMPs should
be considered and adopted for use in
the community. A single BMP generally
cannot significantly reduce pollutant
loads because pollutants come from
many sources within a community. The
BMPs chosen should: (1) Be appropriate
for the local community; (2) minimize
water quality impacts; and (3) attempt to
maintain pre-development runoff
conditions. In choosing appropriate
BMPs, EPA encourages small MS4
operators to participate in locally-based
watershed planning efforts which
attempt to involve a diverse group of
stakeholders. Each new development
and redevelopment project should have
a BMP component. If an approach is
chosen that primarily focuses on
regional or non-structural BMPs,
however, then the BMPs may be located
away from the actual development site
(e.g., a regional water quality pond).
Non-structural BMPs are preventative
actions that involve management and
source controls such as: (1) Policies and
ordinances that provide requirements
and standards to direct growth to
identified areas, protect sensitive areas
such as wetlands and riparian areas,
maintain and/or increase open space
(including a dedicated funding source
for open space acquisition), provide
buffers along sensitive water bodies,
minimize impervious surfaces, and
minimize disturbance of soils and
vegetation; (2) policies or ordinances
that encourage infill development in
higher density urban areas, and areas
with existing storm sewer infrastructure;
(3) education programs for developers
and the public about project designs
that minimize water quality impacts;
and (4) other measures such as
minimization of the percentage of
impervious area after development, use
of measures to minimize directly
connected impervious areas, and source
control measures often thought of as
good housekeeping, preventive
maintenance and spill prevention.
Detailed examples of non-structural
BMPs follow.
Preserving open space may help to
protect water quality as well as provide
other benefits such as recharging
groundwater supplies, detaining storm
water, supporting wildlife and
providing recreational opportunities.
Although securing funding for open
space acquisition may be difficult,
various funding mechanisms have been
used. New Jersey uses a portion of their
State sales tax (voter approved for a ten
year period) as a stable source of
funding to finance the preservation of
historic sites, open space and farmland.
Colorado uses part of the proceeds from
the State lottery to acquire and manage
open space. Some local municipalities
use a percentage of the local sales tax
revenue to pay for open space
acquisition (e.g., Jefferson County, CO
has had an open space program in place
since 1977 funded by a 0.50 percent
sales tax). Open space can be acquired
in the form of: fee simple purchase;
easements; development rights;
purchase and sellback or leaseback
arrangements; purchase options; private
land trusts; impact fees; and land
dedication requirements. Generally, fee
simple purchases provide the highest
level of development control and
certainty of preservation, whereas the
other forms of acquisition may provide
less control, though they would also
generally be less costly.
Cluster development, while allowing
housing densities comparable to
conventional zoning practice,
concentrates housing units in a portion
of the total site area which provides for
greater open space, recreation, stream
protection and storm water control. This
type of development, by reducing lot
sizes, can protect sensitive areas and
result in less impervious surface, as well
as reduce the cost for roads and other
infrastructure.
Minimizing directly connected
impervious areas (DCIAs) is a drainage
strategy that seeks to reduce paved areas
and directs storm water runoff to
landscaped areas or to structural
controls such as grass swales or buffer
strips. This strategy can slow the rate of
runoff, reduce runoff volumes, attenuate
peak flows, and encourage filtering and
infiltration of storm water. It can be
made an integral part of drainage
planning for any development (Urban
Drainage and Flood Control District,
Denver, CO. 1992. Urban Storm
Drainage Criteria Manual, Volume 3—
Best Management Practices). The Urban
Drainage and Flood Control District
manual describes three levels for
minimizing DCIAs. At Level 1 all
impervious surfaces are made to drain
over grass-covered areas before reaching
a storm water conveyance system. Level
2 adds to Level 1 and replaces street
curb and gutter systems with low-
velocity grass-lined swales and pervious
street shoulders. In addition to Levels 1
and 2, Level 3 over-sizes swales and
configures driveway and street crossing
culverts to use grass-lined swales as
elongated detention basins.
Structural BMPs include: (1) Storage
practices such as wet ponds and
extended-detention outlet structures; (2)
filtration practices such as grassed
swales, sand filters and filter strips; and
(3) infiltration practices such as
infiltration basins and infiltration
trenches.
EPA recommends that small MS4
operators ensure the appropriate
implementation of the structural BMPs
by considering some or all of the
following: (1) Pre-construction review of
BMP designs; (2) inspections during
construction to verify BMPs are built as
designed; (3) post-construction
inspection and maintenance of BMPs; -
and (4) sanctions to ensure compliance
with design, construction or operation
and maintenance (O&M) requirements
of the program.
EPA cautions that certain infiltration
systems such as dry wells, bored wells
or tile drainage fields may be subject to
Underground Injection Control (UIC)
program requirements (see 40 CFR Part
144.12.). To find out more about these
requirements, contact your state UIC
Program, or call EPA's Safe Drinking
Water Hotline at 1-800-426-4791.
In order to meet the third post-
construction requirement (ensuring
adequate long-term O&M of BMPs), EPA
recommends that small MS4 operators
evaluate various O&M management
agreement options. The most common
options are agreements between the
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MS4 operator and another party such as
post-development landowners (e.g.,
homeowners' associations, office park
owners, other government departments
or entities), or regional authorities (e.g.,
flood control districts, councils of
government). These agreements
typically require the post-construction
property owner to be responsible for the
O&M and may include conditions
which: allow the MS4 operator to be
reimbursed for O&M performed by the
MS4 operator that is the responsibility
of the property owner but is not
performed; allow the MS4 operator to
enter the property for inspection
purposes; and in some cases specify that
the property owner submit periodic
reports.
. In providing the guidance above, EPA
intends the requirements in today's rule
to be consistent with the permit
application requirements for large MS4s
for post-construction controls for new
development and redevelopment. MS4
operators have significant flexibility
both to develop this measure as
appropriate to address local concerns,
and to apply new control technologies
as they become available. Storm water
pollution control technologies are
constantly being improved. EPA
recommends that MS4s be responsive to
these changes, developments or
improvements in control technologies.
EPA will provide more detailed
guidance addressing the responsibility
for long-term O&M of storm water
controls in guidance materials. The
guidance will also provide information
on appropriate planning considerations,
structural controls and non-structural
controls. EPA also intends to develop a
broad menu of BMPs as guidance to
ensure flexibility to accommodate local
conditions.
EPA received comments suggesting
that requirements for new development
be treated separately from
redevelopment in the rule. The
comment stressed that new
development on raw land presents
fewer obstacles and more opportunities
to incorporate elements for preventing
water quality impacts, whereas
redevelopment projects are constrained
by space limitations and existing
infrastructure. Another comment
suggested allowing waivers from the
redevelopment requirements if the
redevelopment does not result in
additional adverse water quality
impacts, and where BMPs are not
technologically or economically
feasible. EPA recognizes that
redevelopment projects may have more
site constraints \vhich narrow the range
of appropriate BMPs. Today's rule
provides small MS4 operators with the
flexibility to develop requirements that
may be different for redevelopment
projects, and may also include
allowances for alternate or off-site BMPs
at certain redevelopment projects. Non-
structural BMPs may be the most
appropriate approach for smaller
redevelopment projects.
EPA received comments requesting
clarification on what is meant by "pre-
development" conditions within the
context of redevelopment. Pre-
development refers to runoff conditions
that exist onsite immediately before the
planned development activities occur.
Pre-development is not intended to be
interpreted as that period before any
human-induced land disturbance
activity has occurred.
EPA received comments on the
guidance language in the proposed rule
and preamble which suggest that
implementation of this measure should
"attempt to maintain pre-development
runoff conditions" and that "post-
development conditions should not be
different than pre-development
conditions in a way that adversely
affects water quality." Many comments
expressed concern that maintaining pre-
development runoff conditions is
impossible and cost-prohibitive, and
objected to any reference to "flow" or
increase in volume of runoff. Other
comments support the inclusion of this
language in the final rule. Similar
references in today's rule relating to pre-
development runoff conditions are
intended as recommendations to
attempt to maintain pre-development
runoff conditions. With these
recommendations, EPA intends to
prevent water quality impacts resulting
from increased discharges of pollutants,
which may result from increased
volume of runoff. In many cases,
consideration of the increased flow rate,
velocity and energy of storm water
discharges following development
unavoidably must be taken into
consideration in order to reduce the
discharge of pollutants, to meet water
quality standards and to prevent
degradation of receiving streams. EPA
recommends that municipalities
consider these factors when developing
their post-construction storm water
management program.
Some comments said that the quoted
phrases in the paragraph above are
directives that imply federal land use
control, which they argue is beyond the
authority of the CWA. EPA recognizes
that land use planning is within the
authority of local governments.
EPA disagrees, however, with the
implication that today's rule dictates
any such land use decisions. The
requirement for small MS4 operators to
develop a program to address discharges
resulting from new development and
redevelopment is essentially a pollution
prevention measure. The Rule provides
the MS4 operator with flexibility to
determine the appropriate BMPs to
address local water quality concerns.
EPA recognizes that these program goals
may not be applied to every site, and
expects that MS4s will develop an
appropriate combination of BMPs to be
applied on a site-by-site, regional or
watershed basis.
vi. Pollution Prevention/Good
Housekeeping for Municipal
Operations. Under today's final rule,
operators of MS4s must develop and
implement an operation and
maintenance program ("program") that
includes a training component and has
the ultimate goal of preventing or
reducing storm water from municipal
operations (in addition to those that
constitute storm water discharges
associated with industrial activity). This
measure's emphasis on proper O&M of
MS4s and employee training, as
opposed to requiring the MS4 to
undertake major new activities, is meant
to ensure that municipal activities are
performed in the most efficient way to
minimize contamination of storm water
discharges.
The program must include
government employee training that
addresses prevention measures
pertaining to municipal operations such
as: parks, golf courses and open space
maintenance; fleet maintenance; new
construction or land disturbance;
building oversight; planning; and storm
water system maintenance. The program
can use existing storm water pollution
prevention training materials provided
by the State, Tribe, EPA, or
environmental, public interest, or trade
organizations.
EPA also encourages operators of
MS4s to consider the following in
developing a program: (1) Implement
maintenance activities, maintenance
schedules, and long-term inspection
procedures for structural and non-
structural storm water controls to
reduce floatables and other pollutants
discharged from the separate storm
sewers; (2) implement controls for
reducing or eliminating the discharge of
pollutants from streets, roads, highways,
municipal parking lots, maintenance
and storage yards, waste transfer '
stations, fleet or maintenance shops
with outdoor storage areas, and salt/
sand storage locations and snow
disposal areas operated by the MS4; (3)
adopt procedures for the proper
disposal of waste removed from the
separate storm sewer systems and areas
listed above in (2), including dredge
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spoil, accumulated sediments,
floatables, and other debris; and (4)
adopt procedures to ensure that new
flood management projects are assessed •
for impacts on water quality and
existing projects are assessed for
incorporation of additional water
quality protection devices or practices.
Ultimately, the effective performance of
the program measure depends on the
proper maintenance of the BMPs, both
structural and non-structural. Without
proper maintenance, BMP performance
declines significantly over time.
Additionally, BMP neglect may produce
health and safety threats, such as
structural failure leading to flooding,
undesirable animal and insect breeding,
and odors. Maintenance of structural
BMPs could include: replacing upper
levels of gravel; dredging of detention
ponds; and repairing of retention basin
outlet structure integrity. Maintenance
of non-structural BMPs could include
updating educational materials
periodically.
EPA emphasizes that programs should
identify and incorporate existing storm
water practices and training, as well as
non-storm water practices or programs
that have storm water pollution
prevention benefits, as a means to avoid
duplication of efforts and reduce overall
costs. EPA recommends that MS4s
incorporate these new obligations into
their existing programs to the greatest
extent feasible and urges States to
evaluate MS4 programs with
programmatic efficiency in mind. EPA
designed this minimum control measure
as a modified version of the permit
application requirements for medium
and large MS4s described at 40 CFR
122.26(d)(2)(iv), in order to provide
more flexibility for these smaller MS4s.
Today's requirements provide for a
consistent approach to control
pollutants from O&M among medium,
large, and regulated small MS4s.
By properly implementing a program,
operators of MS4s serve as a model for
the rest of the regulated community.
Furthermore, the establishment of a
long-term program could result in cost
savings by minimizing possible damage
to the system from floatables and other
debris and, consequently, reducing the
need for repairs.
EPA received comments requesting
clarification of what this measure
requires. Certain municipalities
expressed concern that the measure has
the potential to impose significant costs
associated with EPA's requirement that
operators of MS4s consider
implementing controls for reducing or
eliminating the discharge of pollutants
from streets, roads, highways, municipal
parking lots, and salt/sand storage
locations and snow disposal areas
operated by the municipality. EPA
disagrees that a requirement to consider
such controls will impose considerable
costs.
One commenter objected to the
preamble language from the proposal
suggesting that EPA does not expect the
MS4 to undertake new activity. While it
remains the Agency's expectation that
major new activity will not be required,
the MEP process should drive MS4s to
incorporate the measure's obligations
into their existing programs to achieve
the pollutant reductions to the
maximum extent practicable.
Certain commenters requested a
definition for "municipal operations."
EPA has revised the language to more
clearly define municipal operations.
Questions may remain concerning
whether discharges from specific
municipal activities constitute
discharges associated with industrial
activities (requiring NPDES permit
authorization according to the
requirements for industrial storm water
that apply in that State) or from
municipal operations (subject only to
the controls developed in the MS4
control program). Even though there
may be different substantive
requirements that apply depending on
the source of the discharge, EPA has
modified the deadlines for permit
.coverage so that all the regulated
municipally owned and operated
sources become subject to permit
requirements on the same date. The
deadline is the same for permit coverage
for this minimum measure as for permit
coverage for municipally owned/
operated industrial sources.
c. Application Requirements
An NFPDES permit that authorizes the
discharge from a regulated small MS4
may take the form of either an
individual permit issued to one or more
facilities as co-permittees or a general
permit that applies to a group of MS4s.
For reasons of administrative efficiency
and to reduce the paperwork burden on
permittees, EPA expects that most
discharges from regulated small MS4s
will be authorized under general
permits. These NPDES general permits
will provide specific instructions on
how to obtain coverage, including
application requirements. Typically,
such application requirements will be
satisfied by the submission of a Notice
of Intent (NOI) to be covered by the
general permit. In this section, EPA
explains the small MS4 operator's
application requirements for obtaining
coverage under a NPDES permit for
storm water.
i. Best Management Practices and
Measurable Goals, Section 122.34(d) of
today's rule requires the operator of a
regulated small MS4 that wishes to
implement a program under § 122.34 to
identify and submit to the NPDES
permitting authority a list of the best
management practices ("BMPs") that
will be implemented for each minimum
control measure in their storm water
management program. They also must
submit measurable goals for the
development and implementation of
each BMP. The BMPs and the
measurable goals must be included
either in an NOI to be covered under a
general permit or in an individual
permit application.
The operator's submission must
identify, as appropriate, the months and
years in which the operator will
undertake actions required to
implement each of the minimum control
measures, including interim milestones
and the frequency of periodic actions.
The Agency revised references to
"starting and completing" actions from
the proposed rule because many actions
will be repetitive or ongoing. The
submission also must identify the
person or persons responsible for
implementing or coordinating the small
MS4 storm water program. See
§ 122.34(d). The submitted BMPs and
measurable goals become enforceable
according to the terms of the permit.
The first permit can allow the permittee
up to five years to fully implement the
storm water management program.
Several commenters opposed making
the measurable goals enforceable permit
conditions. Some suggested that a
permittee should be able to change its
goals so that BMPs that are not
functioning as intended can be replaced.
EPA agrees that a permittee should be
free to switch its BMPs and
corresponding goals to others that
accomplish the minimum measure or
measures. The permittee is required to
implement BMPs that address the
minimum measures in § 122.34(b). If the
permittee determines that its original
combination of BMPs are not adequate
to achieve the objectives of the
municipal program, the MS4 should
revise its program to implement BMPs
that are adequate and submit to the
permitting authority a revised list of
BMPs and measurable goals. EPA
suggests that permits describe the
process for revising BMPs and
measurable goals, such as whether the
permittee should follow the same
procedures as were required for the
submission of the original NOI and
whether the permitting authority's
approval is necessary prior to the
permittee implementing the revised
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BMPs. The permittee should indicate on
its periodic report whether any BMPs
and measurable goals have been revised
since the last periodic report.
Some commenters expressed concern
that making the measurable goals
enforceable would encourage the
development of easily attained goals
and, conversely, discourage the setting
of ambitious goals. Others noted that it
is often difficult to determine the
pollutant reduction that can be achieved
by BMPs until several years after
implementation. Much of the opposition
to the enforceability of measurable goals
appears to have been based on a
mistaken understanding that measurable
goals must consist of pollutant
reduction targets to be achieved by the
corresponding BMPs.
Today's rule requires the operator to
submit either measurable goals that
serve as BMP design objectives or goals
that quantify the progress of
implementation of the actions or
performance of the permittee's BMPs. At
a minimum, the required measurable
goals should describe specific actions
taken by the permittee to implement
each BMP and the frequency and the
dates for such actions. Although the
operator may choose to do so, it is not
required to submit goals that measure
whether a BMP or combination of BMPs
is effective in achieving a specific result
in terms of storm water discharge
quality. For example, a measurable goal
might involve a commitment to inspect
a given number of drainage areas of the
collection system for illicit connections
by a certain date. The measurable goal
need not commit to achieving a specific
amount of pollutant reduction through
the elimination of illicit connections.
Other measurable goals could include
the date by which public education
materials would be developed, a certain
percentage of the community
participating in a clean-up campaign,
the development of a mechanism to
address construction site runoff, and a
reduction in the percentage of
imperviousness associated with new
development projects.
To reduce the risk that permittees will
develop inadequate BMPs, EPA intends
to develop a menu of BMPs to assist the
operators of regulated small MS4s with
the development of municipal
programs. States may also develop a
menu of BMPs. Today's rule provides
that the measurable goals that
demonstrate compliance with the
minimum control measures in §§ 122.34
(b)(3) through (b)(6) do not have to be
met if the State or EPA has not issued
a menu of BMPs at the time the MS4
submits its NOI. Commenters pointed
out that the proposed rule would have
made the measurable goals
unenforceable if the menu of BMPs was
not available, but the proposal was
silent as to the enforceability of the
implementation of BMPs. Today's rule
clarifies that the operators are not free
to do nothing prior to the issuance of a
menu of BMPs; they still must make a
good faith effort to implement the BMPs
designed to comply with each measure.
See § 122.34(d)(2). The operators would
not, however, be liable for failure to
meet its measurable goals if a menu of
BMPs was not available at the time they
submit their NOI.
The proposed rule provision in
§ 123.35 stated that the "[fjailure to
issue the menu of BMPs would not
affect the legal status of the general
permit." This concept is included in the
final rule in § 122.34(d)(2)'s clarification
that the permittee still must comply
with other requirements of the general
permit.
Unlike the proposed rule, today's rule
does not require that each BMP in the
menu developed by the State or EPA be
regionally appropriate, cost-effective
and field-tested. Various commenters
criticized those criteria as unworkable,
and one described them as "ripe for
ambiguity and abuse." Other
commenters feared that the operators of
regulated small MS4s would never be
required to achieve their goals until
menus were developed that were cost-
effective, field-tested and appropriate
for every conceivable subregion.
While some municipal commenters
supported the requirement that a menu
of BMPs be made available that
included BMPs that had been
determined to be regionally appropriate,
field-tested and cost-effective, others
raised concerns that they would be
restricted to a limited menu. Some
commenters supported such a detailed
menu because they thought they would
only be able to select BMPs that were on
the menu, while others thought that it
was the permitting authority's
responsibility to develop BMPs
narrowly tailored to their situation. In
response, EPA notes that the operators
will not be restricted to implementing
only, or all of, the BMPs included on the
menu. Since the menu does not require
permittees to implement the BMPs
included on the menu, it is also not
necessary to apply the public notice and
other procedures that some commenters
thought should be applied to the
development of the menu of BMPs.
The purpose of the BMP menu is to
provide guidance to assist the operators
of regulated small MS4s with the
development and refinement of their
local program, not to limit their options.
Permittees may implement BMPs other
than those on the menu unless a State
restricts its permittees to specific BMPs.
To the extent possible, EPA will
develop a menu of BMPs that describes
the appropriateness of BMPs to specific
regions, whether the BMPs have been
field-tested, and their approximate
costs. The menu, however, is not
intended to relieve permittees of the
need to implement BMPs that are
appropriate for their specific
circumstances.
If there are no known relevant BMPs
for a specific circumstance, a permittee
has the option of developing and
implementing pilot BMPs that may be
better suited to their circumstances.
Where BMPs are experimental, the
permittee should consider committing
to measurable goals that address its
schedule for implementing its selected
BMPs rather than goals of achieving
specific pollutant reductions. If the
BMPs implemented by the permittee do
not achieve the desired objective, the
permittee may be required to commit to
different or revised BMPs.
As stated in § 123.35(g), EPA is
committed to issuing a menu of BMPs
prior to the deadline for the issuance of
permits. This menu would serve as
guidance for all operators of regulated
small MS4s nationwide. After
developing the initial menu of BMPs,
EPA intends to periodically modify,
update, and supplement the menu of
BMPs based on the assessments of the
MS4 storm water program and research.
States may rely on EPA's menu of BMPs
or issue their own. If States develop
their own menus, they would constitute
additional guidance (or perhaps
requirements in some States) for the
operators to follow. Several commenters
were confused by the proposed rule
language that stated that States must
provide or issue a menu of BMPs and,
if they fail to do so, EPA "may" do so.
Some read this language as not requiring
either EPA or the State to develop the
menu. EPA had intended that it would
develop a menu and that States could
either provide the EPA developed menu
or one developed by the State.
EPA has dropped the proposed
language that States "must" develop the
menu of BMPs. Some commenters
thought that it was inappropriate to
require States to issue guidance. A
menu of BMPs issued by either EPA or
a permittee's State will satisfy the
condition in § 122.34(dJ that a
regulatory authority provide a menu of
BMPs. A State could require its
permittees to follow its menu of BMPs
provided that they are adequate to
implement § 122.34(b).
Several commenters raised concerns
that operators of small MS4s could be
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68764 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
required to submit their BMPs and
measurable goals before EPA or the
State has issued a menu of BMPs. EPA
has assumed primary responsibility for .
developing a menu of BMPs to
minimize the possibility of this
occurring. Should a general permit be
issued before a menu of BMPs is
available, the permit writer would have
the option of delaying the date by which
the identification of the BMPs and
measurable goals must be submitted to
the permitting authority until some time
after a menu of BMPs is available.
Several municipal commenters raised
concerns that they would begin to
develop a program only to be later told
by the permitting authority or
challenged in a citizen suit that their
BMPs were inadequate. They expressed
a need for certainty regarding what their
permit required. Several commenters
suggested that EPA require permitting
authorities to approve or disapprove the
submitted BMPs and measurable goals.
EPA disagrees that formal approval or
disapproval by the permitting authority
is needed.
EPA acknowledges that the lack of a
formal approval process does place on
the permittee some responsibility for
designing and determining the adequacy
of its BMPs. Once the permittee has
submitted its BMPs to the permitting
authority as part of its NOI, it must
implement them in order to achieve the
corresponding measurable goals. EPA
does not believe that this results in the
uncertainty to the extent expressed by
some commenters or unduly expose the
permittee to the risk of citizen suit. If
the permit is very specific regarding
what the permittee must do, then the
uncertainty is eliminated. If the permit
is less prescriptive, the permittee has
greater latitude in determining for itself
what constitutes an adequate program.
A citizen suit could impose liability on
the permittee only if the program that it
develops and implements clearly does
not satisfy the requirements of the
general permit. EPA believes today's
approach strikes a balance between the
competing goals of providing certainty
as to what constitutes an adequate
program and providing flexibility to the
permittees.
Commenters were divided on whether
five years was a reasonable and
expeditious schedule for a MS4 to
implement its program. Some thought
that it was an appropriate amount of
time to allow for the development and
implementation of adequate programs.
One questioned whether the permittee
had to be implementing all of its
program within that time, and suggested
that there may be cases where a
permitting authority would need
flexibility to allow more time. One
commenter suggested that five years is
too long and would amount to a
relaxation of implementation in their
area. EPA believes it will take
considerable time to complete the tasks
of initially developing a program,
commencing to implement it, and
achieving results. EPA notes, however,
that full implementation of an
appropriate program must occur as
expeditiously as possible, and not later
than five years.
EPA solicited comment on how an
NOI form might best be formatted to
allow for measurable goal information
(e.g., through the use of check boxes or
narrative descriptions) while taking into
account the Agency's intention to
facilitate computer tracking. All
commenters supported the development
of a checklist NOI, but most noted that
there would need to be room for
additional information to cover unusual
situations. One noted that, while a
summary of measurable goals might be
reduced to one sheet, attachments that
more fully described the program and
the planned BMPs would be necessary.
EPA agrees that in most cases a
"checklist" will not be able to capture
the information on what BMPs a
permittee intends to implement and its
measurable goals for their
implementation. EPA will continue to
consider whether to develop a model
NOI form and make it available for
permitting authorities that choose to use
it. What will be required on an MS4's
NOI, however, is more extensive than
what is usually required on an NOI, so
a "form" NOI for MS4s may be
impractical.
ii. Individual Permit Application for a
§ 122.34(b) program. In some cases, an
operator of a regulated small MS4s may
seek coverage under an individual
NPDES permit, either because it chooses
to do so or because the NPDES
permitting authority has not made the
general permit option available to that
source. For small MS4s that are to
implement a § 122.34(b) program in
today's rule, EPA is promulgating
simplified individual permit application
requirements at § 122.33(b)(2)(i). Under
the simplified individual permit
application requirements, the operator
submits an application to the NPDES
permitting authority that includes the
information required under § 122.21(f)
and an estimate of square mileage
served by the small MS4. They are also
required to supply the BMP and
measurable goal information required
under § 122.34(d). Consistent with CWA
section 308 and analogous State law, the
permitting authority could request any
additional information to gain a better
understanding of the system and the
areas draining into the system.
Commenters suggested that the
requirements of § 122.21(f) are not
necessarily applicable to a small MS4.'
One suggested that it was not
appropriate to require the following
information: a description of the
activities conducted by the applicant
which require it to obtain an NPDES
permit; the name, mailing address, and
location of the facility; and up to four
Standard Industrial Classification
("SIC") codes which best reflect the
principal products or services provided
by the facility. In response, EPA notes
that the requirements in § 122.21 (f) are
generic application requirements
applicable to NPDES applicants. With
the exception of the SIC code
requirement, EPA believes that they are
applicable to MS4s. In the SIC code
portion of the standard application, the
applicant may simply put "not
applicable."
One commenter asked that EPA
clarify whether § 122.21(f)(5)'s
requirement to indicate "whether the
facility is located on Indian lands,"
referred to tribal lands, Indian country,
or Indian reservations. For some local
governments this is a complex issue
with no easy "yes" or "no" answer. See
the discussion in the Section II.F in the
proposal to today's rule regarding what
tribal lands are subject to the federal
trust responsibility for purposes of the
NPDES program.
One commenter suggested that the
application should not have to list the
permits and approvals required under
§ 122.21[f)(6). EPA notes that the
applicant must only list the
environmental permits that the
applicant has received that cover the
small MS4. The applicant is not
required to list permits for other
operations conducted by the small MS4
operator (e.g., for an operation of an
airport or landfill). Again, in most cases
the applicant could respond "not
applicable" to this portion of the
application.
One commenter suggested that the
topographic map requirement of
§ 122.21 (f)(7) was completely different
from, and significantly more onerous
than, the mapping requirement outlined
in the proposed rule at § 122.34(b)(3)(i).
EPA agrees and has modified the final
rule to clarify that a map that satisfies
the requirements of § 122.34(b)(3)(i) also
satisfies the map requirements for MS4
applicants seeking individual permits
under § 122.33(b)(2)(i).
EPA is adding a new paragraph to
§ 122.44(k) to clarify that requirements
to implement BMPs developed pursuant
to CWA 402(p) are appropriate permit
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conditions. While such conditions
could be included under the existing
provision in § 122.44(k)(3) for "practices
reasonably necessary to achieve effluent
limitations and standards or to carry out
the purposes and intent of the CWA,"
EPA believes it is clearer to specifically
list in § 122.44(k) BMPs that implement
storm water programs in light of the
frequency with which they are used as
effluent limitations.
///. Alternative Permit Options/Tenth
Amendment. As an alternative to
implementing a program that addresses
each of the six minimum measures
according to the requirements of
§ 122.34(b), today's rule provides the
operators of regulated small MS4s with
the option of applying for an individual
permit under existing § 122.26(d). See
§ 122.33(b)(2)(ii). If a system operator
does not want to be held accountable for
implementation of each of the minimum
measures, an individual permit option
under § 122.33(b)(2)(ii) remains
available. (As explained in the next
section of this preamble, § 122.35(b) also
provides an opportunity for relief from
permit obligations for some of the
minimum measures, but that relief
exists within the framework of the
minimum measures.)
EPA originally drafted the individual
permit application requirements in
§ 122.26(d) to apply to medium and
large MS4s. Today's rule abbreviates the
individual permit application
requirements for small MS4s. Although
EPA believes that the storm water
management program requirements of
§ 122.34, including the minimum
measures, provide the most appropriate
means to control pollutants from most
small MS4s, the Agency does recognize
that the operators of some small MS4s
may prefer more individualized permit
requirements. Among other possible
reasons, an operator may seek to avoid
having to "regulate" third parties
discharging into the separate storm
sewer system. Alternatively, an operator
may determine that structural controls,
such as constructed wetlands, are more
appropriate or effective to address the
discharges that would otherwise be
addressed under the construction and/
or development/redevelopment
measures.
Some MS4s commenters alleged that
an absolute requirement to implement
the minimum measures violates the
Tenth Amendment to the U.S.
Constitution. While EPA disagrees that
requiring MS4s to implement the
minimum measures would violate the
Constitution, today's rule does provide
small MS4s with the option of
developing more individualized
measures to reduce the pollutants and
pollution associated with urban storm
water that will be regulated under
today's rule.
Some commenters specifically
objected that § 122.34's minimum
measures for small MS4s violate the
Tenth Amendment insofar as they
require the operators of MS4s to regulate
third parties. The minimum measures
include requirements for small MS4
operators to prohibit certain non-storm
water discharges, control storm water
discharges from construction greater
than one acre, and take other actions to
control third party sources of storm
water discharges into their MS4s.
Commenters also argued that it was
inappropriate for EPA to require local
governments to enact ordinances that
will consume local revenues and put
local governments in the position of
bearing the political responsibility for
implementing the program. One
commenter argued that EPA was
prohibited from conditioning the
issuance of an NPDES permit upon the
small MS4 operators waiving their
constitutional right to be free from such
requirements to regulate third parties.
The Agency replies to each comment in
turn.
Because the rule does rely on local
governments—who operate municipal
separate storm sewer systems—to
regulate discharges from third parties
into storm sewers, EPA acknowledges
that the rule implicates the Tenth
Amendment and constitutional
principles of federalism. EPA disagrees,
however, that today's rule is
inconsistent with federalism principles.
I As political subdivisions of States,
municipalities enjoy the same
protections as States under the Tenth
Amendment.]
The Supreme Court has interpreted
the Tenth Amendment to preclude
federal actions that compel States or
their political subdivisions to enact or
administer a federal regulatory program.
See New Yorkv. United States, 505 U.S.
144 (1992); Printzv. United States, 117
S.Ct. 2365 (1997). The Printecase,
however, did acknowledge that the
restriction does not apply when federal
requirements of general applicability—
requirements that regulate all parties
engaging in a particular activity—do not
excessively interfere with the
functioning of State governments when
those requirements are applied to States
(or their political subdivisions). See
Printz, 117 S.Ct. at 2383.
Today's rule imposes a federal
requirement of general applicability,
namely, the requirement to obtain and
comply with an NPDES permit, on
municipalities that operate a municipal
separate storm sewer system. By virtue
of this rule, the permit will require the
municipality/storm sewer operator to
develop a storm water control program.
The rule specifies the components of the
control program, which are primarily
"management'-type controls, for
example, municipal regulation of third
party storm water discharges associated
with construction, as well as
development and redevelopment, when
those discharges would enter the
municipal system.
Unlike the circumstances reviewed in
the New York and Printz cases, today's
rule merely applies a generally
applicable requirement (the CWA
permit requirement) to municipal point
sources. The CWA establishes a
generally applicable requirement to
, obtain an NPDES permit to authorize
point source discharge to waters of the
United States. Because municipalities
own and operate separate storm sewers,
including storm sewers into which third
parties may discharge pollutants,
NPDES permits may require
municipalities to control the discharge
of pollutants into the storm sewers in
the first instance. Because NPDES
permits can impose end-of-pipe
numeric effluent limits, narrative
effluent limits in the form of
"management" program requirements
are also within the scope of Clean Water
Act authority. As noted above, however,
EPA believes that such narrative
limitations are the most appropriate
form of effluent limitation for these
types of permits. For municipal separate
storm sewer permits, CWA section
402(p)(3)(B)(iii) specifically authorizes
"controls to reduce pollutants to the
maximum extent practicable, including
management practices, control
techniques and system, design and
engineering methods, and such other
provisions as the Administrator or the
State determines appropriate for the
control of such pollutants."
The Agency did not design the
minimum measures in § 122.34 to
"commandeer" state regulatory
mechanisms, but rather to reduce
pollutant discharges from small MS4s.
The permit requirement in CWA section
402 is a requirement of general
applicability. The operator of a small
MS4 that does not prohibit and/or
control discharges into its system
essentially accepts "title" for those
discharges. At a minimum, by providing
free and open access to the MS4s that
convey discharges to the waters of the
United States, the municipal storm
sewer system enables water quality
impairment by third parties. Section
122.34 requires the operator of a
regulated small MS4 to control a third
_
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68766 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
party only to the extent that the MS4
collection system receives pollutants
from that third party and discharges it
to the waters of the United States. The •
operators of regulated small MS4s
cannot passively receive and discharge
pollutants from third parties. The
Agency concedes that administration of
a municipal program will consume
limited local revenues for
implementation; but those
consequences stem from the municipal
operator's identity as a permitted sewer
system operator. The Tenth Amendment
does not create a blanket municipal
immunity from generally applicable
requirements. Development of a
program based on the minimum
measures and implementation of that
program should not "excessively
interfere" with the functioning of
municipal government, especially given
the "practicability" threshold under
CWA section 402(p)(3)(B)(iii).
As noted above, today's rule also
allows regulated small MS4s to opt out
of the minimum measures approach.
The individual permit option provides
for greater flexibility in program
implementation and also responds to
the comment about requiring a
municipal permit applicant's waiver of
any arguable constitutional rights. The
individual permit option responds to
questions about the rule's alleged
unconstitutionally by more specifically
focusing on the pollutants discharged
from municipal point sources. Today's
rule gives operators of MS4s the option
to seek an individual permit that varies
from the minimum measures/
management approach that is otherwise
specified in today's rule. Even if the
minimum measures approach was
constitutionally suspect, a requirement
that standing alone would violate
constitutional principles of federalism
does not raise concerns if the entity
subject to the requirement may opt for
an alternative action that does not raise
a federalism issue.
For municipal system operators who
seek to avoid third party regulation
according to all or some of the
minimum measures, § 122.26(d)
requires the operator to submit a
narrative description of its storm water
sewer system and any existing storm
water control program, as well as the
monitoring data to enable the permit
writer to develop appropriate permit
conditions. The permit writer can then
develop permit conditions and
limitations that vary from the six
minimum measures prescribed in
today's rule. The information will
enable the permit writer to develop an
NPDES permit that will result in
pollutant reduction to the maximum
extent practicable. See NRDCv. EPA,
966 F.2d at 1308, n!7. If determined
appropriate under CWA section
402(p)(3)(B)(iii), for example BMPs to
meet water quality standards, the permit
could also incorporate any more
stringent or prescriptive effluent limits
based on the individual permit
application information.
For small MS4 operators seeking an
individual permit, both Part 1 and Part
2 of the application requirements in
§ 122.26(d)(l) and (2) are required to be
submitted within 3 years and 90 days of
the date of publication of this Federal
Register notice. Some of the information
required in Part 1 will necessarily have
to be developed by the permit applicant
prior to the development of Part 2 of the
application. The permit applicant
should coordinate with its permitting
authority regarding the timing of review
of the information.
The operators of regulated small MS4s
that apply under § 122.26(d) may apply
to implement certain of the § 122.34(b)
minimum control measures, and thereby
focus the necessary evaluation for
additional limitations on alternative
controls to the § 122.34(b) measures that
the small MS4 will not implement. The
permit writer may determine
"equivalency" for some or all of the
minimum measures by developing a
rough estimate of the pollutant
reduction that would be achieved if the
MS4 implemented the § 122.34
minimum measure and to incorporate
that pollutant reduction estimate in the
small MS4's individual permit as an
effluent limitation. The Agency
recognizes that, based on current
information, any such estimates will
probably have a wide range.
Anticipation of this wide range is one of
the reasons EPA believes MS4 operators
need flexibility in determining the mix
of BMPs (under the minimum measures]
to achieve water quality objectives.
Therefore, for example, if a system
operator seeks to employ an alternative
that involves structural controls, wide
ranges will probably be associated with
gross pollutant reduction estimates.
Permit writers will undoubtedly
develop other ways to ensure that
permit limits ensure reduction of
pollutants to the maximum extent
practicable.
Small MS4 operators that pursue this
individual permit option do not need to
submit details about their future
program requirements (e.g., the MS4's
future plans to obtain legal authority
required by §§ 122.26(d)(l)(ii) and
(d)(2)). A small MS4 operator might
elect to supply such information if it
intends for the permit writer to take
those plans into account when
developing the small MS4's permit
conditions.
Several operators of small MS4s
commented that they currently lacked
the authority they would need to
implement one or more of the minimum
measures in § 122.34(b). Today's rule
recognizes that the operators of some
small MS4s might not have the
authority under State law to implement
one or more of the measures using, for
example, an ordinance or other
regulatory mechanism. To address these
situations, each minimum measure in
§ 122.34(b) that would require the small
MS4 operator to develop an ordinance
or other regulatory mechanism states
that the operator is only required to
implement that requirement to "the
extent allowable under State, Tribal or
local law." See § 122.34(b)(3)(ii) (illicit
discharge elimination), §122.34(b)(4)(ii)
(construction runoff control) and
§ 122.34(b)(5)(ii) (post-construction
storm water management). This
regulatory language does not mean that
a operator of a small MS4 with
ordinance making authority can simply
fail to pass an ordinance necessary for
a § 122.34(b) program. The reference to
"the extent allowable under * * * local
law" refers to the local laws of other
political subdivisions to which the MS4
operator is subject. Rather, a small MS4
operator that seeks to implement a
program under section § 122.34(b) may
omit a requirement to develop an
ordinance or other regulatory
mechanism only to the extent its
municipal charter, State constitution or
other legal authority prevents the
operator from exercising the necessary
authority. Where the operator cannot
obtain the authority to implement any
activity that is only required to "the
extent allowable under State, Tribal or
local law," the operator may satisfy
today's rule by administering the
remaining § 122.34(b) requirements.
Finally, although today's rule
provides operators of small MS4s with
an option of applying for a permit under
§ 122.26(d), States authorized to
administer the NPDES program are not
required to provide this option. NPDES-
authorized States could require all
regulated small MS4s to be permitted
under the minimum measures
management approach in § 122.34 as a
matter of State law. Such an approach
would be deemed to be equally or more
stringent than what is required by
today's rule. See 40 CFR 123.2(i). The
federalism concerns discussed above do
not apply to requirements imposed by a
State on its political subdivisions.
iv. Satisfaction of Minimum Measure
Obligations by Another Entity. An
operator of a regulated small MS4 may
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and .Regulations 68767
satisfy the requirement to implement
one or more of the six minimum
measures in § 122.3'4(b) by having a
third party implement the measure or
measures. Today's rule provides a
variety of means for small MS4
operators to share responsibility for
different aspects of their storm water
management program. The means by
which the operators of various MS4s
share responsibility may affect who is
ultimately responsible for performance
of the minimum measure and who files
the periodic reports on the
implementation of the minimum
measure. Section 122.35 addresses these
issues. The rule describes two different
variants on third party implementation
with different consequences if the third
party fails to implement the measure.
If the permit covering the discharge
from a regulated small MS4 identifies
the operator as the entity responsible for
a particular minimum control measure,
then the operator-permittee remains
responsible for the implementation of
that measure even if another entity has
agreed to implement the control
measure. Section 122.35 (a). Another
party may satisfy the operator-
permittee's responsibility by
implementing the minimum control
measure in a manner at least as stringent
or prescriptive as the corresponding
NPDES permit requirement. If the third
party fails to do so, the operator-
permittee remains responsible for its
performance. The operator of the MS4
should consider entering into an
agreement with the third party that
acknowledges the responsibility to
implement the minimum measure. The
operator-permittee's NOI and its annual
§ 122.34(f)(3) reports submitted to the
NPDES permitting authority must
identify the third party that is satisfying
one or more of the permit obligations.
This requirement ensures that the
permitting authority is aware which
entity is supposed to implement which
minimum measures.
If, on the other hand, the regulated
small MS4's permit recognizes that an
NPDES permittee other than the
operator-permittee is responsible for a
particular minimum control measure,
then the operator-permittee is relieved
from the responsibility for
implementing that measure. The
operator-permittee is also relieved from.
the responsibility for implementing any
measure that the operator's permit
indicates will be performed by the
NPDES permitting authority. Section
122.35(b). The MS4 operator-permittee
would be responsible for implementing
the remaining minimum measures.
Today's final rule differs from the
proposed version of § 122.35(b), which
stated that, even if the third party's
responsibility is recognized in the
permit, the MS4 operator-permittee
remained responsible for performance if
the third party failed to perform the
measure consistent with § 122.34(b).
Under today's rule, the operator-
permittee is relieved from responsibility
for performance of a measure if the third
party is an NPDES permittee whose
permit makes it responsible for
performance of the measure (including,
for example, a State agency other than
the State agency that issues NPDES
permits) or if the third party is the
NPDES permitting authority itself.
Because the permitting authority is
acknowledging the third party's
responsibility in the permit,
commenters thought that the MS4
operator-permittee should not be
responsible for ensuring that the other
entity is implementing the control
measure properly. EPA agrees that the
operator-permittee should not be
conditionally responsible when the
requirements are enforceable against
some other NPDES permittee. If the
third party fails to perform the
minimum measure, the requirements
will be enforceable against the third
party. In addition, the NPDES
permitting authority could reopen the
operator-permittee's permit under
§ 122.62 and modify the permit to make
the operator responsible for
implementing the measure. A new
paragraph has been added to § 122.62 to
clarify that the permit may be reopened
in such circumstances.
Today's rule also provides that the
operator-permittee is not conditionally
responsible where it is the State NPDES
permitting authority itself that fails to
implement the measure. The permitting
authority does not need to issue a
permit to itself (i.e., to the same State,
agency that issues the permit) for the
sole purpose of relieving the small MS4
from responsibility in the event the
State agency does not satisfy its
obligation to implement a measure. EPA
does not believe that the small MS4
should be responsible in the situation
where the NPDES permit issued to the
small MS4 operator recognizes that the
State agency that issues the permit is
responsible for implementing a
measure. If the State does fail to
implement the measure, the State
agency could be held accountable for its
commitment in the permit to implement
the measure. Where the State does not
fulfill its responsibility to implement a
measure, a citizen also could petition
for withdrawal of the State's NPDES
program or it could petition to have the
MS4's permit reopened to require the
MS4 operator to implement the
measure.
EPA notes that not every State
program that addresses erosion and
sediment control from construction sites
will be adequate to satisfy the
requirement that each regulated small
MS4 have a program to the extent
required by § 122.34(b)(4). For example,
although all NPDES States are required
to issue NPDES permits for construction
activity that disturbs greater than one
acre, the State's NPDES permit program
will not necessarily be extensive enough
to satisfy a regulated small MS4's
obligation under § 122.34(b)(4). NPDES
States will not necessarily be
implementing all of the required
elements of that minimum measure,
such as procedures for site plan review
in each jurisdiction required to develop
a program and procedures for receipt
and consideration of information
submitted by the public on individual
construction sites. In order for a State .
erosion and sediment control program
to satisfy a small MS4 operator's
obligation to implement § 122.34(b)(4),
the State program would have to
include all of the elements of that
minimum measure.
Where the operator-permittee is itself
performing one or more of the minimum
measures, the operator-permittee
remains responsible for all of the
reporting requirements under
§ 122.34(f)(3). The operator-permittee's
reports should identify each entity that
is performing the control measures
within the geographic jurisdiction of the
regulated small MS4. If the other entity
also operates a regulated MS4 and files
reports on the progress of
implementation of the measures within
the geographic jurisdiction of the MS4,
then the operator-permittee need not
include that same information in its
own reports.
If the other entity operates a regulated
MS4 and is performing all of the
minimum measures for the permittee,
the permittee is not required to file the
reports required by § 122.34(9(3). This
relief from reporting is specified in
§122.35(a).
Section 122.35 addresses the concerns
of some commenters who sought relief
for governmental facilities that are
classified as small MS4s under today's
rule. These facilities frequently
discharge storm water through another
regulated MS4 and could be regulated
by that MS4's program. For example, a
State owned office complex that
operates its storm sewer system in an
urbanized area will be regulated as an
MS4 under today's rule even though its
system may be subject to the storm
water controls of the municipality in
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68768 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
which it is located. Today's rule
specifically revised the definition of
MS4 to recognize that different levels of
government often operate MS4s and that
each such separate entity (including the
federal government) should be
responsible for its discharges. If both
MS4s agree, the downstream MS4 can
develop a storm water management
program that regulates the discharge
from both MS4s. The upstream small
MS4 operator still must submit an NOI
that identifies the entity on which the
upstream small MS4 operator is relying
to satisfy its permit obligations. No
reports are required from the upstream
small MS4 operator, but the upstream
operator must remain in compliance
with the downstream MS4 operator's
storm water management program. This
option allows small MS4s to work
together to develop one storm water
management program that satisfies the
permit obligations of both. If they
cannot agree, the upstream small MS4
operator must develop its own program.
As mentioned previously, comments
from federal facilities and State
organizations that operate MS4s
requested that their permit requirements
differ from those of MS4s that are
political subdivisions of States (cities,
towns, counties, etc.). EPA
acknowledges that there are differences;
e.g., many federal and State facilities do
not serve a resident population and thus
might require a different approach to
public education. EPA believes,
however, that MS4s owned by State and
federal governments can develop storm
water management plans that address
the minimum measures. Federal and
State owned small MS4s may choose to
work with adjacent municipally owned
MS4s to develop a unified plan that
addresses all of the required measures
within the jurisdiction of all of the
contiguous MS4s. The options in
§ 122.35 minimize the burden on small
MS4s that are covered by another MS4's
program.
One commenter recommended that if
one MS4 discharges into a second MS4,
the operator of the upstream MS4
should have to provide a copy of its NOI
or permit application to the operator of
the receiving MS4. EPA did not adopt
this recommendation because the NOI
and permit application will be publicly
available; but EPA does recommend that
NPDES permitting authorities consider
it as a possible permit requirement. The
commenter also suggested that
monitoring data should be collected by
the upstream MS4 and provided to the
downstream MS4. EPA is not adopting
such a uniform monitoring requirement
because EPA believes it is more
appropriate to let the MS4 operators
work out the need for such data. If
necessary, the downstream MS4s might
want to make such data a condition to
allowing the upstream MS4 to connect
to its system.
v. Joint Permit Programs. Many
commenters supported allowing the
operators of small MS4s to apply as co-
permittees so they each would not have
to develop their own storm water
management program. Today's rule
specifically allows regulated small
MS4s to join with either other small
MS4s regulated under § 122.34(d) or
with medium and large MS4s regulated
under §122.26(d).
As is discussed in the previous
section, regulated small MS4s may
indicate in their NOIs that another
entity is performing one or mOre of its
required minimum control measures.
Today's rule under § 122.33(b)(l) also
specifically allows the operators of
regulated small MS4s to jointly submit
an NOI. The joint NOI must clearly
indicate which entity is required to
implement which control measure in
each geographic jurisdiction within the
service area of the entire small MS4.
The operator of each regulated small
MS4 remains responsible for the
implementation of each minimum
measure for its MS4 (unless, as is
discussed in the previous section above,
the permit recognizes that another entity
is responsible for completing the
measure.) The joint NOI, therefore, is
legally equivalent to each entity
submitting its own NOI. EPA is,
however, revising the rule language to
specifically authorize the joint
submission of NOIs in response to
comments that suggested that such
explicit authorization might encourage
programs to be coordinated on a
watershed basis.
Section 122.33(b)(2)(iii) authorizes
regulated small MS4s to jointly apply
for an individual permit to implement
today's rule, where allowed by an
NPDES permitting authority. The permit
application should contain sufficient
information to allow the permitting
authority to allocate responsibility
among the parties under one of the two
permitting options in §§ 122.33(b)(2)(i)
and (ii).
Section 122.33(b)(3) of today's rule
also allows an operator of a regulated
small MS4 to join as a co-permittee in
an existing NPDES permit issued to an
adjoining medium or large MS4 or
source designated under the existing
storm water program. This co-permittee
option applies only with the agreement
of all co-permittees. Under this co-
permittee arrangement, the operator of
the regulated small MS4 must comply
with the terms and conditions of the
applicable permit rather than the permit
condition requirements of § 122.34 of
today's rule. The regulated small MS4
that wishes to be a co-permittee must
comply with the applicable
requirements of § 122.26(d), but would
not be required to fulfill all the permit
application requirements applicable to
medium and large MS4s. Specifically,
the regulated small MS4 is not required
to comply with the application
requirements of § 122.26(d)(l)(iii)
(Part 1 source identification), § 122.26
(d)(l)(iv) (Part 1 discharge
characterization), and § 122.26(d)(2)(iii)
(Part 2 discharge characterization data).
Furthermore, the regulated small MS4
operator could satisfy the requirements
in § 122.26(d)(l)(v) (Part 1 management
programs) and § 122.26(d)(2)(iv) (Part 2
proposed management program) by
referring to the adjoining MS4 operator's
existing plan. An operator pursuing this
option must describe in the permit
modification request how the adjoining
MS4's storm water program addresses or
needs to be supplemented in order to
adequately address discharges from the
MS4. The request must also explain the
role of the small MS4 operator in
coordinating local storm water activities
and describe the resources available to
accomplish the storm water
management plan.
EPA sought comments regarding the
appropriateness of the application
requirements in these subsections of
§ 122.26(d). One commenter. stated that
newly regulated smaller MS4s should
not be required to meet the existing
regulations' Part II application
requirements under § 122.26(d)
regarding the control of storm water
discharges from industrial activity. EPA
disagrees. The smaller MS4 operators
designated for regulation in today's rule
may satisfy this requirement by
referencing the legal authority of the
already regulated MS4 program to the
extent the newly regulated MS4 will
rely on such legal authority to satisfy its
permit requirements. If the smaller MS4
operator plans to rely on its own legal
authorities, it must identify it in the
application. If the smaller MS4 operator
does not elect to use its own legal
authority, they may file an individual
permit application for an alternate
program under § 122.33(b)(2)(ii).
The explanatory language in
§ 122.33(b)(3) recommends that the
smaller MS4s designated under today's
rule identify how an existing plan
"would need to be supplemented in
order to adequately address your
discharges." One commenter suggested
that this must be regulatory language
and not guidance. EPA disagrees that
this needs to be mandatory language.
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68769
Since many of the smaller MS4s
designated today are "donut holes"
within the geographic jurisdiction of an
already regulated MS4, the larger MS4's
program generally will be adequate to
address the newly regulated MS4's
discharges. The small MS4 applicant
should consider the adequacy of the
existing MS4's program to address the
smaller MS4's water quality needs, but
EPA is not imposing specific
requirements. Where circumstances
suggest that the existing program is
inadequate with respect to the newly
designated MS4 and the applicant does
not address the issue, the NPDES
permitting authority must require that
the existing program be supplemented.
Commenters recommended that the
application deadline for smaller MS4s
designated today be extended so that
existing regulated MS4s would not have
to modify their permit in the middle of
their permit term, provided that permit
renewal would occur within a
reasonable time (12 to 18 months) of the
deadline. In response, EPA notes that
today's rule allows operators of newly
designated small MS4s up to three years
and 90 days from the promulgation of
today's rule to submit an application to
be covered under the permit issued to
an already regulated MS4. The
permitting authority has a reasonable
time after receipt of the application to
modify the existing permit to include
the newly designated source. If an
existing MS4's permit is up for renewal
in the near future, the operator of a
newly designated small MS4 may take
that into account when timing its
application and the NPDES permitting
authority may take that into account
when processing the application.
Another commenter suggested that
the rule should include a provision to
allow permit application requirements
for smaller MS4s designated today to be
determined by the permitting authority
to account for the particular needs/
wants of an already regulated MS4
operator. EPA does not believe that the
regulations should specifically require
this approach. When negotiating
whether to include a newly designated
MS4 in its program, the already
regulated MS4 operator may require the
newly designated MS4's operator to
provide any information that is
necessary.
The co-permitting approach allows
small MS4s to take advantage of existing
programs to ease the burden of creating
their own programs. The operators of
regulated small MS4s, however, may
find it simpler to apply for a program
under today's rule, and to identify the
medium or large MS4 operator that is
implementing portions of its § 122.34(b)
minimum measures.
d. Evaluation and Assessment
Under today's rule, operators of
regulated small MS4s are required to
evaluate the appropriateness of their
identified BMPs and progress toward
achieving their identified measurable
goals. The purpose of this evaluation is
to determine whether or not the MS4 is
meeting the requirements of the
minimum control measures. The NPDES
permitting authority is responsible for
determining whether and what types of
monitoring needs to be conducted and
may require monitoring in accordance
with State/Tribe monitoring plans
appropriate to the watershed. EPA does
not encourage requirements for "end-of-
pipe" monitoring for regulated small
MS4s. Rather, EPA encourages
permitting authorities to carefully
examine existing ambient water quality
and assess data needs. Permitting
authorities should consider a
combination of physical, chemical, and
biological monitoring or the use of other
environmental indicators such as
exceedance frequencies of water quality
standards, impacted dry weather flows,
and increased flooding frequency.
(Claytor, R. and W. Brown. 1996.
Environmental Indicators to Assess
Storm Water Control Programs and
Practices. Center for Watershed
Protection, Silver Spring, MD.) Section
ILL., Water Quality Issues, discusses
monitoring in greater detail.
As recommended by the
Intergovernmental Task Force on
Monitoring Water Quality (ITFM), the
NPDES permitting authority is
encouraged to consider the following
watershed objectives in determining
monitoring requirements: (1) To
characterize water quality and
ecosystem health in a watershed over
time, (2) to determine causes of existing
and future water quality and ecosystem
health problems in a watershed and
develop a watershed management
program, (3) to assess progress of
watershed management program or
effectiveness of pollution prevention
and control practices, and (4) to support
documentation of compliance with
permit conditions and/or water quality
standards. With these objectives in
mind, the Agency encourages
participation in group monitoring
programs that can take advantage of
existing monitoring programs
undertaken by a variety of governmental
and nongovernental entities. Many
States may already have a monitoring
program in effect on a watershed basis.
The ITFM report is included in the
docket for today's rule
(Intergovernmental Task Force on
Monitoring Water Quality. 1995. The
Strategy for Improving Water-Quality
Monitoring in the United States: Final
Report of the Intergovernmental Task
Force on Monitoring Water Quality.
Copies can be obtained from: U.S.
Geological Survey, Reston, VA.).
EPA expects that many types of
entities will have a role in supporting
group monitoring activities—including
federal agencies, State agencies, the
public, and various classes or categories
of point source dischargers. Some
regulated small MS4s might be required
to contribute to such monitoring efforts.
EPA expects, however, that their
participation in monitoring activities
will be relatively limited. For purposes
of today's rule, EPA recommends that,
in general, NPDES permits for small
MS4s should not require the conduct of
any additional monitoring beyond
monitoring that the small MS4 may be
already performing. In the second and
subsequent permit terms, EPA expects
that some limited ambient monitoring
might be appropriately required for
perhaps half of the regulated small
MS4s. EPA expects that such
monitoring will only be done in
identified locations for relatively few
pollutants of concern. EPA does not
anticipate "end-of-pipe" monitoring
requirements for regulated small MS4s.
EPA received a wide range of
comments on this section of the rule.
Some commenters believe that EPA
should require monitoring; others want
a strong statement that the newly
regulated small MS4s should not be
required to monitor. Many commenters
raised questions about exactly what EPA
expects MS4s to do to evaluate and
assess their BMPs. EPA has
intentionally written today's rule to
provide flexibility to both MS4s and
permitting authorities regarding
appropriate evaluation and assessment.
Permitting authorities can specify
monitoring or other means of evaluation
when writing permits. If additional
requirements are not specified, MS4s
can decide what they believe is the most
appropriate way to evaluate their storm
water management program. As
mentioned above, EPA expects that the
necessity for monitoring and its extent
may change from permit cycle to permit
cycle. This is another reason for making
the evaluation and assessment rule
requirements very flexible.
i. Recordkeeping. The NPDES
permitting authority is required to
include at least the minimum
appropriate recordkeeping conditions in
each permit. Additionally, the NPDES
permitting authority can specify that
permittees develop, maintain, and/or
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submit other records to determine
compliance with permit conditions. The
MS4 operator must keep these records
for at least 3 years but is not required
to submit records to the NPDES
permitting authority unless specifically
directed to do so. The MS4 operator
must make the records, including the
storm water management program,
available to the public at reasonable
times during regular business hours (see
40 CFR 122.7 for confidentiality
provision). The MS4 operator is also
able to assess a reasonable charge for
copying and to establish advance notice
requirements for members of the public.
EPA received a comment that
questioned EPA's authority to require
MS4s to make their records available to
the public. EPA disagrees with the
commenter and believes that the CWA
does give EPA the authority to require
that MS4 records be available. It is also
more practical for the public to request
records directly from the MS4 than to
request them from EPA who would then
make the request to the MS4. Based on
comments, EPA revised the proposed
rule so as not to limit the time for
advance notice requirements to 2
business days.
ii. Reporting. Under today's rule, the
operator of a regulated small MS4 is
required to submit annual reports to the
NPDES permitting authority for the first
permit term. For subsequent permit
terms, the MS4 operator must submit
reports in years 2 and 4 unless the
NPDES permitting authority requires
more frequent reports. EPA received
several comments supporting this
timing for report submittal. Other
commenters suggested that annual
reports during the first permit cycle are
too burdensome and not necessary. EPA
believes that annual reports are needed
during the first 5-year permit term to
help permitting authorities track and
assess the development of MS4
programs, which should be established
by the end of the initial term.
Information contained in these reports
can also be used to respond to public
inquiries.
The report must include (1) the status
of compliance with permit conditions,
an assessment of the appropriateness of
identified BMPs and progress toward
achieving measurable goals for each of
the minimum control measures, (2)
results of information collected and
analyzed, including monitoring data, if
any, during the reporting period, (3) a
summary of what storm water activities
the permittee plans to undertake during
the next reporting cycle, and (4) a .
change in any identified measurable
goal(s) that apply to the program
elements.
The NPDES permitting authority is
encouraged to provide a brief two-page
reporting format to facilitate compiling
and analyzing the data from submitted
reports. EPA does not believe that
submittal of a brief annual report of this
nature is overly burdensome, and has
not changed the required reporting time
frame from the proposal. The permitting
authority will use the reports in
evaluating compliance with permit
conditions and, where necessary, will
modify the permit conditions to address
changed conditions.
Hi. Permit-As-A-Shield. Section
122.36 describes the scope of
authorization (i.e. "permit-as-a-shield")
under an NPDES permit as provided by
section 402(k) of the CWA. Section
402 (k) provides that compliance with an
NPDES permit is deemed compliance,
for purposes of enforcement under CWA
sections 309 and 505, with CWA
sections 301, 302, 306, 307, and 403,
except for any standard imposed under
section 307 for toxic pollutants
injurious to human health.
EPA's Policy Statement on Scope of
Discharge Authorization and Shield
Associated with NPDES Permits,
originally issued on July 1,1994, and
revised on April 11,1995, provides
additional information on this matter.
e. Other Applicable NPDES
Requirements
Any NPDES permit issued to an
operator of a regulated small MS4 must
also include other applicable NPDES
permit requirements and standard
conditions, specifically the applicable
requirements and conditions at 40 CFR
122.41 through 122.49. Reporting
requirements for regulated small MS4s
are governed by § 122.34 and not the
existing requirements for medium and
large MS4s at § 122.42(c). In addition,
the NPDES permitting authority is
encouraged to consult the Interim
Permitting Approach, issued on August
1,1996. The discussion on the Interim
Permitting Approach in Section II.L.l,
Water Quality Based Effluent Limits,
provides more information. The
provisions of §§ 122.41 through 122.49
establish permit conditions and
limitations that are broadly applicable
to the entire range of NPDES permits.
These provisions should be interpreted
in a manner that is consistent with
provisions that address specific classes
or categories of discharges. For example,
§ 122.44(d) is a general requirement that
each NPDES permit shall include
conditions to meet water quality
standards. This requirement will be met
by the specific approach outlined in
today's rule for the implementation of
BMPs. BMPs are the most appropriate
form of effluent limitations to satisfy
technology requirements and water
quality-based requirements in MS4
permits (see the introduction to Section
II.H.3, Municipal Permit Requirements,
Section II.H.S.h, Reevaluation of Rule,
and the discussion of the Interim
Permitting Policy in Section II.L.l.
below).
f. Enforceability
NPDES permits are federally
enforceable. Violators may be subject to
the enforcement actions and penalties
described in CWA sections 309, 504,
and 505 or under similar water
pollution enforcement provisions of
State, tribal or local law. Compliance
with a permit issued pursuant to section
402 of the Clean Water Act is deemed
compliance, for purposes of sections
309 and 505, with sections 301, 302,
306, 307, and 403 (except any standard
imposed under section 307 for toxic
pollutants injurious to human health).
g. Deadlines
Today's final rule includes
"expeditious deadlines" as directed by
CWA section 402{p)(6). In proposed
§ 122.26(e), the permit application for
the "ISTEA" facilities was maintained
as August 7, 2001 and the permit
application deadline for storm water
discharges associated with other
construction activity was established as
3 years and 90 days from the final rule
date. In proposed § 122.33(c)(l),
operators of regulated small MS4s were
required to seek permit coverage within
3 years and 90 days from the date of
publication of the final rule. In
proposed § 122.33(c)(2), operators of
regulated small MS4s designated by the
NPDES permitting authority on a local
basis under § 122.32(a)(2) must seek
coverage under an NPDES permit within
60 days of notice, unless the NPDES
permitting authority specifies a later
date.
In order to increase the clarity of
today's final rule, EPA has changed the
location of some of the above
requirements. All application deadlines
for both Phase I and Phase II are now
listed or referenced in § 122.26(e).
Section 122.26(e)(l) contains the
deadlines for storm water associated
with industrial activity. Paragraph (i)
has been changed to correct a
typographical error. Paragraph (ii) has
been revised to reflect the changed
application date for "ISTEA" facilities.
(See discussion in section 1.3, ISTEA
Sources). The application deadline for
storm water discharges associated with
other construction activity is now in a
new § 122.26(e)(8). The application
deadline for regulated small MS4s
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remains in § 122.33(c) because this
section is written in "readable
regulation" format, but it is also
described in a new § 122.26(e}(9).
Under today's rule, permitting
authorities are allowed up to 3 years to
issue a general permit and MS4s
designated under § 122.32(a)(l) are
allowed up to 3 years and 90 days to
submit a permit application. Operators
of regulated small MS4s that choose to
be a co-permittee with an adjoining MS4
with an existing NPDES storm water
permit must apply for a modification of
that permit within the same time frame.
Several commenters stated that 90 days
was not adequate time to submit an
NOI. This might be true if facilities did
not start developing their storm water
program until publication of their
general permit. In fact, municipalities
should start developing their storm
water program upon publication of
today's final rule, if they have not
already done so. Municipalities that are
uncertain if they fall within the
urbanized area should ask their
permitting authority. EPA believes that
municipalities should not automatically
take three years and 90 days to develop
a program and submit their NOI. Three
years is the maximum amount of time
to issue a general permit. MS4s that are
automatically designated under today's
rule may have less than 3 years and 90
days if the permitting authority issues a
permit that requires submission of NOIs
before that time. EPA encourages States
to modify their NPDES program to
include storm water and issue their
permits as soon as possible. It is
important for permitting authorities to
keep their municipalities informed of
their progress in developing or
modifying their NPDES storm water
requirements.
EPA recognizes that MS4s brought
into the program due to the 2000 Census
calculations do not have as much time
to develop a program as those already
designated from the 1990 Census.
However, the official Bureau of the
Census urbanized area calculation for
the 2000 Census is expected to be
published in the Federal Register in the
spring of 2002, which should give the
potentially affected MS4s adequate time
to prepare for compliance under the
applicable permit. However, if the
publication of this information is
delayed, MS4s in newly designated
urbanized areas will have 180 days'from
the time the new designations are
published to submit an NOI, consistent
with the time frame for other regulated
MS4s that are designated after
promulgation of the rule.
The proposed application deadline for
MS4s designated under § 122.32(a)(2)
was within 60 days of notice. Many
commenters stated that 60 days does not
provide adequate time for the
preparation of an NOI or permit
application. EPA agrees that newly
designated MS4s may not be aware that
they might be designated since the
permitting authority could take several
years to develop designation criteria.
EPA has decided that the application
time frame for these facilities should be
consistent with the 180 days allowed for
facilities designated under
§§ 122.26(a)(9)(i)(C) and (D). Section
122.33(c)(2) of today's final rule
contains the modified time frame of 180
days to apply for coverage.
h. Reevaluation of Rule
The municipal caucus of the Storm
Water Phase II FACA Subcommittee
asked EPA to demonstrate its
commitment to revisit the municipal
requirements of today's rule and make
changes where necessary after
evaluating the storm water program and
researching the effectiveness of
municipal BMPs. In § 122.37 of today's
final rule, EPA commits to revisiting the
regulations for the municipal storm
water discharge control program after
completion of the first two permit terms.
EPA intends to use this time to work
closely with stakeholders on research
efforts. Gathering and analyzing data
related to the storm water program,
including data regarding the
effectiveness of BMPs, is critical to
EPA's storm water program evaluation.
EPA does not intend to change today's
NPDES municipal storm water program
until the end of this period, except
under the following circumstances: a
court decision requires changes; a
technical change is necessary for
implementation; or the CWA is
modified, thereby requiring changes.
After careful analysis, EPA might also
consider changes from consensus-based
stakeholder requests regarding
requirements applicable to newly
regulated MS4s. EPA will apply the
August 1,1996, Interim Permitting
Approach to today's program during
this interim period and encourages all
permitting authorities to use this
approach in municipal storm water
permits for newly regulated MS4s and
in determining MS4 permit
requirements under a TMDL approach.
After careful consideration of the data,
EPA will make modifications as
necessary.
EPA received comments that
supported waiting two permit cycles
before re-evaluating the rule and other
comments that requested re-evaluation
much sooner. EPA anticipates two full
permit cycles are necessary to obtain
enough data to significantly evaluate the
rule. The re-evaluation time frame of 13
years from today remains as proposed.
I. Other Designated Storm Water
Discharges
1. Discharges Associated with Small
Construction Activity
Section 122.26(b)(15) of today's rule
designates certain construction
activities for regulation as "storm water
discharges associated with small
construction activity." Specifically,
storm water discharges from
construction activity equal to or greater
than 1 acre and less than 5 acres are
automatically designated except in
those circumstances where the operator
(i.e., person responsible for discharges
that might occur) certifies to the
permitting authority that one of two
specific waiver circumstances
(described in section b. below) applies.
Sites below one acre may be designated
under § 122.26(b)(15)(ii) where
necessary to protect water quality.
Today's rule regulates these
construction-related storm water
sources under CWA section 402(p)(6) to
protect water quality rather than under
CWA section 402(p)(2). Designation
under 402(p)(6) gives States and EPA
the flexibility to waive the permit
requirement for construction activity
that is not likely to impair water quality,
and to designate additional sources
below one acre that are likely to cause
water quality impairment. Thus, the one
acre threshold of today's rule is not an
absolute threshold like the five acre
threshold that applies under the existing
storm water rule.
Today's rule regulating certain storm
water discharges from, construction
activity disturbing less than 5 acres is
consistent with the 9th Circuit remand
in NRDCv. EPA, 966 F.2d 1292 (9th Cir.
1992). In that case, the court remanded
portions of the existing storm water
regulations related to discharges from
construction sites. The existing Phase I
regulations define "storm water
discharges associated with industrial
activity" to include storm water
discharges from construction sites
disturbing 5 acres or more of total land
area (see 40 CFR 122.26(b)(14)(x)). In its
decision, the court concluded that the 5-
acre threshold was improper because
the Agency had failed to identify
information "to support its perception
that construction activities on less than
5 acres are non-industrial in nature"
(966 F.2d at 1306). The court remanded
the exemption to EPA for further
proceedings (966 F.2d at 1310). EPA's
objectives in today's action include an
effort to (1) address the 9th Circuit
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remand to reconsider regulation of
storm water discharges from
construction activities that disturb less
than 5 acres of land, (2) address water •
quality concerns associated with such
activities, and (3) balance conflicting
recommendations and concerns of
stakeholders in the regulation of
additional construction activity.
EPA responded to the Ninth Circuit's
decision by designating discharges from
construction activities that disturb
between 1 and 5 acres as "discharges
associated with small construction
activity" under CWA section 402(p)(6),
rather than as "discharges associated
with industrial activity" under CWA
section 402(p)(2)(B). Although a size
criterion alone may be an indicator of
whether runoff from construction sites
between 1 and 5 acres is "associated
with industrial activity," the Agency is
instead relying on a size threshold in
tandem with provisions that allow for
designations and waivers based on
potential for "predicted water quality
impairments" to regulate construction
sites between 1 and 5 acres under CWA
section 402(p)(6). This approach was
chosen by the Agency for the sake of
simplicity and certainty and, most
importantly, to protect water quality
consistent with the mandate of CWA
section 402(p)(6). Today's rule also
includes extended application deadlines
for this new category of dischargers
under the authority of CWA section
402(p)(6) (see § 122.26(e)(8) of today's
rule).
In today's rule, EPA is regulating
storm water discharges from additional
construction sites to better protect the
Nation's waters, while remaining
sensitive to a concern that the Agency
should not regulate discharges from
construction sites that might not or do
not have adverse water quality impacts.
EPA believes that today's rule will
successfully accomplish this objective
by establishing a 1-acre threshold
nationwide that includes the flexibility
to allow the permitting authority to both
waive requirements for discharges from
sites that are not expected to cause
adverse water quality impacts and to
designate discharges from sites below 1-
acre based on adverse water quality
impacts.
In addition to the diminishing water
quality benefits of regulating all sites
below one acre, the Agency relied on
practical considerations in establishing
a one acre threshold and not setting a
lower threshold. Regardless of the
threshold established by EPA, a NPDES
permit can only be required if a
construction site has a point source
discharge. A point source discharge
means that pollutants are added to
waters of the United States through a
discernible, confined, discrete
conveyance. "Sheet flow" runoff from a
small construction site would not result
in a point source discharge unless and
until it channelized. As the amount of
disturbed land surface decreases,
precipitation is less likely to channelize
and create a "point source" discharge
(assuming the absence of steep slopes or
other factors that lead to increased
channelization). Categorical designation
of very small sites may create confusion
about applicability of the NPDES
permitting program to those sites. EPA's
one acre threshold reflects, in part, the
need to recognize that smaller sites are
less likely to result in point source
discharges. Of course, the NPDES
permitting authority could designate
smaller sites (below one acre, assuming
point source discharges occur from the
smaller designated sites) for regulation
if a watershed or other local assessment
indicated the need to do so. The Phase
II rule includes this designation
authority at 40 CFR 122.26(a)(9)(i)(D)
and (b)(15)(ii).
The one acre threshold also provides
an administrative tool for more easily
identifying those sites that are identified
for coverage by the rule (but may receive
a waiver) and those that are not
automatically covered (but may be
designated for inclusion). Although all
construction sites less than five acres
could have a significant water quality
impact cumulatively, EPA is
automatically designating for permit
coverage only those storm water
discharges from construction sites that
disturb land equal to or greater than one
acre. Categorical regulation of
discharges from construction below this
one acre threshold would overwhelm
the resources of permitting authorities
and might not yield corresponding
water quality benefits. Construction
activities that disturb less than one acre
make up, in total, a very small
percentage of the total land disturbance
from construction nationwide. The one
acre threshold is reasonable for
accomplishing the water quality goals of
CWA section 402(p)(6) because it results
in 97.5% of the total acreage disturbed
by construction being designated for
coverage by the NPDES storm water
program, while excluding from
automatic coverage the numerous
smaller sites that represent 24.7% of the
total number of construction sites.
Some commenters believed that EPA
has not adequately identified water
quality problems associated with storm
water discharges from construction
activity disturbing less than five acres.
Other commenters believed that storm
water discharges from small
construction activity is a significant
water quality problem nationwide.
Section I.E.3, Construction Site Runoff,
provides a detailed discussion of
adverse water quality impacts resulting
from construction site storm water
discharges. EPA is regulating storm
water discharges from construction
activity disturbing between 1 and 5
acres because the cumulative impact of
many sources, and not just a single
identified source, is typically the cause
for water quality impairments,
particularly for sediment-related water
quality standards.
Several commenters requested that
EPA regulate discharges from small
construction activity as "discharges
associated with industrial activity"
under CWA 402(p)(4) and not, as
proposed, as "storm water discharges
associated with other activity" under
CWA 402(p)(6). EPA is regulating
discharges from small construction sites
as "small construction activity" under
the authority of CWA section 402(p)(6),
rather than section 402(p)(4), to ensure
that regulation of these sources is water
quality-sensitive. CWA section 402(p)(6)
affords the opportunity for designations
and waivers of sources based on
potential for "predicted water quality
impairments." Regulation of storm
water "associated with industrial
activity" does not necessarily focus
regulation to protect water quality.
a. Scope
The definition of "storm water
discharges associated with small
construction activity" includes
discharges from construction activities,
such as clearing, grading, and
excavating activities, that result in the
disturbance of equal to or greater than
1 acre and less than 5 acres (see
§ 122.26(b)(15)(i)). Such activities could
include: road building; construction of
residential houses, office buildings, or
industrial buildings; or demolition
activity. The definition of "storm water
discharges associated with small
construction activity" also includes any
other construction activity, regardless of
size, designated based on the potential
for contribution to a violation of a water
quality standard or for significant
contribution of pollutants to waters of
the United States (§ 122.26(b)(15)(ii)).
This designation is made by the
Director, or in States with approved
NPDES programs, either the Director or
the EPA Regional Administrator.
For the purposes of today's rule, the
definition of "storm water discharges
associated with small construction
activity" includes discharges from
activities disturbing less than 1 acre if
that construction activity is part of a
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"larger common plan of development or
sale" with a planned disturbance of
equal to or greater than 1 acre of land.
A "larger common plan of development
or sale" means a contiguous area where
multiple separate and distinct
construction activities are planned to
occur at different times on different
schedules under one plan, e.g., a
housing development of five Y4 acre lots
(§122.26(b)(15Ki)).
In addition to the regulatory text for
smaller construction, the Agency is also
revising the existing text of
§ 122.26(b)(14)(x) to clarify EPA's
intention regarding construction
projects involving a larger common plan
of development or sale ultimately
disturbing 5 or more acres. Operators of
such sites are required to seek coverage
under an NPDES permit regardless of
the number of lots in the larger plan
because designation for permit coverage
is based on the total amount of land area
to be disturbed under the common plan.
This designation attempts to address the
potential cumulative effects of
numerous construction activities
concentrated in a given area.
Several commenters asked that EPA
allow the permitting authority to set the
appropriate size threshold based on
water quality studies. While EPA agrees
that location-specific water quality
studies provide an ideal information
base from which to make regulatory
decisions, today's rule establishes a
default standard for regulation in the
absence of location-specific studies. The
rule does allow for deviation from the
default standard through additional
designations and waivers, however,
when supported by location-specific
water quality information. The rule
codifies the ability of permitting
authorities to provide waivers for sites
greater than or equal to one acre (the
default standard) and designate
additional discharges from small sites
below one acre when location-specific
information suggests that the default 1
acre standard is either unnecessary
(waivers) or too limited (designations) to
protect water quality.
Some commenters wanted EPA to
base the regulation of storm water
discharges from construction sites not
only on size, but also on the duration
and intensity of activity occurring on
the site. EPA believes that a national 1-
acre threshold, in combination with
waivers and additional designations, is
the most effective and simplest way to
address adverse water quality impacts
from storm water from small
construction sites. Moreover, as
discussed below, the waiver for rainfall
erosivity does account for projects of
limited duration. EPA believes,
however, that the intensity of activity
occurring on-site would be a very
difficult condition to quantify.
Many commenters requested that EPA
maintain the 5 acre threshold from the
existing regulations, which include
opportunities for site-specific
designation, as the regulatory scope for
regulating storm water from
construction sites, i.e., that the Agency
not automatically regulate storm water
discharges from sites less than 5 acres.
Several commenters wanted
construction requirements to be applied
to sites smaller than 1 acre, while some
commenters suggested alternative
thresholds of 2 or 3 acres. The rest of the
commenters supported the 1 acre
threshold. None of the commenters
presented any data or rationales to
support a specific size threshold.
EPA examined alternative size
thresholds, including 0.5 acre, 1 acre, 2
acres and 5 acres. EPA had difficulty
evaluating the alternative size
thresholds because, while directly
proportional to the size of the disturbed
site, the water quality threat posed by
discharges from construction sites of
differing sizes varies nationwide,
depending on the local climatological,
geological, geographical, and
hydrological influences. In order to
ensure improvements in water quality
nationwide, however, today's rule does
not allow various permitting authorities
to establish different size thresholds
except based on the waiver and
designation provisions of the rule. EPA
believes that the water quality impact
from small construction sites is as high
as or higher than the impact from larger
sites on a per acre basis. By selecting the
1 acre size threshold and coupling it
with waivers and additional
designations, EPA is seeking to
standardize improvement of water
quality on a national basis while
providing permitting authorities with
the opportunity to designate those
unregulated activities causing water
quality impairments regardless of site
size, as well as to waive requirements
when information demonstrates that
regulation is unnecessary.
EPA recognizes that the size criterion
alone may not be the most ideal
predictor of the need for regulation, but
effective protection of water quality
depends as much on simplicity in
implementation as it does on the
scientific information underlying the
regulatory criteria. The default size
criterion of 1 acre will ensure protection
against adverse water quality impacts
from storm water from small
construction sites while not
overburdening the resources of
permitting authorities and the
construction industry to implement the
program to protect water quality in the
first place.
One commenter stated a need to
clarify whether routine road
maintenance is considered construction
activity for the purpose of today's rule.
The NPDES general permit for
discharges from construction sites larger
than 5 acres defined "commencement of
construction" as the initial disturbance
of soils associated with clearing,
grading, or excavating activities or other
construction activities (63 FR 7913). For
construction sites disturbing less than 5
acres, EPA does not consider
construction activity to include routine
maintenance performed to maintain the
original line and grade, hydraulic
capacity, or original purpose of the
facility.
Two commenters believed that the
Multi-Sector General Permit for storm
water discharges from industrial
activities (MSGP) (60 FR 50804) already
applies to storm water discharges from
construction activities at oil and gas
exploration and production sites and
asked for a clarification on this issue.
Commenters also requested a single
general permit to authorize both
industrial storm water discharges and
construction site discharges which
occur at the same industrial site.
Currently, when construction activity
disturbing more than 5 acres occurs on
an industrial site covered by the MSGP,
authorization under a separate NPDES
construction permit is needed because
the MSGP does not include the
"construction" industrial sector. While
the MSGP does address sediment and
erosion control, it is not as specific as
the NPDES general permit for storm
water discharges from construction
activities disturbing more than 5 acres.
Though permitting authorities could
conceivably develop a single general
permit to authorize storm water
discharges associated with construction
activity at these industrial facilities, the
commenter's request is not addressed by
today's rulemaking. When today's rule
is implemented through general permits
(to be issued later), the permitting
authority will have discretion whether
or not to incorporate the permit
requirements for both the industrial
storm water discharges and construction
site storm water discharges into a single
general permit. This type of request
should be addressed to the permitting
authority.
One commenter suggested that
discharges from small construction sites
should be regulated through a "self-
implementing rule" approach. While
today's rule is not a self-implementing
rule, it does add § 122.28(b)(2)(v), which
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gives the permitting authority the
discretion to authorize a construction
general permit for sites less than 5 acres
without submitting a notice of intent.
Such non-registration general permits
function similarly to self-implementing
rules, but are, in fact, permits. Today's
rule will be implemented through
NPDES permits rather than self-
implementing regulations to capitalize
on the compliance, tracking,
enforcement, and public participation
associated with NPDES permits (see
discussion in section II.C).
Other commenters believed that only
the permitting authority should regulate
construction site storm water discharges
(under a NPDES permit) and that a
small MS4 operator's regulation of
storm water discharges associated with
construction (under the small MS4
NPDES storm water program) is
redundant. EPA disagrees that control
measure implementation by the NPDES
authority and the small MS4 operator is
redundant. To the extent the two efforts
overlap, today's rule provides for
consolidation and coordination of
substantive requirements via
incorporation by reference permitting.
Small MS4s operators may choose to
impose more prescriptive requirements
than an NPDES permitting authority
based on localized water quality needs.
In those cases, EPA intends that the
substantive requirements from the small
MS4 program should apply as the
NPDES permit requirements for the
construction site discharger. In cases
where a small MS4 program does not
prioritize and focus on storm water from
construction sites (beyond the small
MS4 minimum control measure in
today's rule, which does not require the
small MS4 operator to control
construction site discharges in a manner
as prescriptive as is expected for
discharges regulated under NPDES
permits), the Agency intends that the
NPDES general permit will provide the
substantive standards applicable to the
construction site discharge. EPA does
anticipate, however, that
implementation of MS4 programs to
address construction site runoff within
their jurisdiction will enhance overall
NPDES compliance by construction site
dischargers. EPA also notes that under
§ 122.35(b), the permitting authority
may recognize its own program to
control storm water discharges from
construction sites in lieu of requiring
such a program in an MS4's NPDES
permit, provided that the permitting
authority's program satisfies the
requirements of § 122.34(b)(4),
including, for example, procedures for
site plan reviews and consideration of
information submitted by the public on
individual construction sites in each
jurisdiction required to be covered by
the program.
b. Waivers
Under § 122.26(b)(15)(i) of today's
rule, NPDES permitting authorities may
waive today's requirement for
construction site operators to obtain a
permit in two circumstances. The first
waiver is intended to apply where little
or no rainfall is expected during the
period of construction. The second
waiver may be granted when a TMDL or
equivalent analysis indicates that
controls on construction site discharges
are not needed to protect water quality.
The first waiver is based on "low
predicted rainfall erosivity" which can
be found using tables of rainfall-runoff
erosivity (R) values published for each
region in the U.S. R factors are
published in the U.S. Department of
Agriculture (USDA) Agricultural
Handbook 703 (Renard, K.G., Foster,
G.R., Weesies, G.A., McCool, O.K., and
D.C. Yoder. 1997. Predicting Soil
Erosion by Water: A Guide to
Conservation Planning with the Revised
Universal Soil Loss Equation (RUSLE).
U.S. Department of Agriculture
Handbook 703). The R factor varies
based on the time during the year when
construction activity occurs, where in
the country it occurs, and how long the
construction activity lasts. The
permitting authority may determine,
using Handbook 703, which times of
year, if any, the waiver opportunity is
available for construction activity. EPA
will provide assistance either through
computer programs or the World Wide
Web on how to determine whether this
waiver applies for a particular
geographic area and time period.
Application of this waiver for regulatory
purposes will be determined by the
authorized NPDES authority. This
waiver is discussed further in the
following section titled Rainfall-
Erosivity Waiver.
The second waiver is based on a
consideration of ambient water quality.
This waiver is available after a State or
EPA develops and implements TMDLs
for the pollutant(s) of concern from
storm water discharges associated with
construction activity. This waiver is also
available for sites discharging to non-
impaired waters that do not require
TMDLs, when an equivalent analysis
has determined allocations for small
construction sites for the pollutant(s) of
concern or determined that such
allocations are not needed to protect
water quality based on consideration of
existing in-stream concentrations,
expected growth in pollutant
contributions from all sources, and a
margin of safety. The Agency envisions
an equivalent analysis that would
demonstrate that water quality is not
threatened by storm water discharges
from small construction activity. This
waiver is discussed further below in the
sections titled TMDL Waiver and Water
Quality Issues.
The proposed rule included a waiver
based on "low predicted soil loss." This
waiver provision would have been
applicable on a case-by-case basis where
the annual soil loss rate for the period
of construction for a site, using the
Revised Universal Soil Loss Equation
(RUSLE), would be less than 2 tons/
acre/year. The annual soil loss rate of
less than 2 tons/acre/year would be
calculated through the use of the RUSLE
equation, assuming the constants of no
ground cover and no runoff controls in
place.
Several commenters found the low
soil loss waiver too complex and
impractical, and stated that expertise is
not available at the local level to prepare
and evaluate eligibility for the waiver.
Another commenter questioned whether
two tons/acre/year was an appropriate
threshold for predicting adverse water
quality impacts. Two other commenters
said that RUSLE was never intended to
predict off-site impacts and is not an
indicator of potential harm to water
quality. EPA agrees with the
commenters on the difficulty associated
with determining and implementing
this waiver. Most construction site
operators are not familiar with the
RUSLE program, and the potential
burden on the permitting authority,
construction industry, USDA's Natural
Resources Conservation Service and
conservation districts probably would
have been significant. The Agency has
not included this waiver in the final
rule.
Two commenters asked that EPA
allow States the flexibility to develop
their own waiver criteria but did not
suggest how the Agency (or affected
stakeholders) could evaluate the
acceptability of alternative State waiver
criteria. Therefore, the final rule does
not provide for any such alternative
waivers. If a State does seek to develop
alternate waiver criteria, then EPA
procedures afford the opportunity for
subsequent actions, for example, under
the Project XL Program in EPA's Office
of Reinvention, which seeks cleaner,
smarter, and cheaper solutions to
environmental problems. Many
commenters suggested that EPA extend
these waivers to existing industrial
storm water regulations for construction
activity greater than 5 acres. These
construction site discharges are
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regulated as industrial storm water
discharges under CWA 402(p)(2) and are
not eligible for such water quality-based
waivers.
Two commenters were concerned that
waivers would create a potential for
significant degradation of small streams.
EPA disagrees. If small streams are
threatened, the permitting autiiority
would choose not to provide any
waivers. In addition, permitting
authorities may protect small streams by
designating discharges from small
construction activity based on the
potential for contribution to a violation
of a water quality standard or for
significant contribution of pollutants to
waters of the U.S.
Two commenters asked that the
waiver options be eliminated. They felt
it would create a gross inequity within
the construction community if some
projects will not be subject to the
requirements of today's rule. While the
comments may be valid, EPA disagrees
that waivers should be disallowed on
this basis. Construction site discharges
that qualify for a waiver from permitting
requirements are not expected to
present a threat to water quality, which
is the basis for designation and
regulation under today's rule.,
A number of commenters suggested
additional waivers in cases where new
development will result in no additional
adverse impacts to water quality as
compared to the existing development it
replaces. EPA believes these waivers are
either unworkable or unnecessary. It
would be very difficult for most
construction operators to determine, as
well as for other stakeholders to verify,
on a site-by-site basis, that there is no
potential for adverse impact to water
quality compared to the replaced
development.
Other commenters proposed waivers
in cases where a local erosion and
sediment control program covers the
project or a separate waiver for small
linear utility projects. Instead of
waivers, today's rule addresses the first
suggestion through the qualifying
program provision described in the
section titled Cross-Referencing State/
Local Erosion and Sediment Control
Programs below. Today's rule provides
waivers for small linear projects in so
far as they satisfy conditions for low
rainfall erosivity. (See
§122.26(b)(15)(iKA).)
Other commenters suggested waivers
based on distance to water body,
existence of vegetated buffer around
water body, slope of disturbed land, or
if discharging to very large bodies of
water. As a result of public outreach,
EPA believes that these proposed
waivers would be generally unworkable
for construction site dischargers and
permitting authorities because of the
difficulty in applying them to all small
sites.
One commenter mentioned that
waivers for the R factor (rainfall-
erosivity) and soil loss are effluent
standards that have not been developed
in accordance with sections 301 and 304
of the CWA. EPA disagrees that these
sections are relevant to the designation
of sources in today's rule. The waiver
provisions in this section of the rule are
jurisdictional because they affect the
scope of the universe of entities subject
to the NPDES program. Therefore, the
waiver provisions are not themselves
substantive control standards
implemented through NPDES permits,
and thus, not subject to the statutory
criteria in sections 301 and 304.
Another commenter stated that :
waivers would allow exemptions to the
technology based requirements and
would thus be inconsistent with the
two-fold approach of the CWA (a
technology based minimum and a water
quality based overlay). EPA
acknowledges that the CWA does not
generally provide for waivers for the
Act's technology-based requirements.
The waiver provisions do not create
exemptions from technology-based
standards that apply to NPDES
dischargers; they provide, exemption
from the underlying requirement for an
NPDES permit in the first place.
Protection of water quality is the reason
these smaller sites are designated for
regulation under NPDES. The Act's two
fold approach imposes more stringent
water quality based effluent limitations
when technology-based limitations
applicable to regulated dischargers are
insufficient to meet water quality
standards. Under today's rule, water
quality protection is the basis for
determining which of the unregulated
sources should be regulated at all. Thus,
today's rule is entirely consistent with
the Act's two fold approach.
/. Rainfall-Erosivity Waiver. The
rainfall-erosivity waiver under
§ 122.26(b)(15)(i)(A) is intended to
exempt the requirements for a permit
when and where negligible rainfall/
runoff-erosivity is expected. In the
development of the Universal Soil Loss
Equation, analysis of data indicated that
when factors other than rainfall are held
constant, soil loss is directly
proportional to a rainfall factor
composed of total storm kinetic energy
times the maximum 30 minute
intensity. The average annual sum of the
storm energy and intensity values for an
area comprise the R factor—the rainfall
erosivity index. A detailed explanation
of the R factor can be found in
Predicting Soil Erosion by Water: A
Guide to Conservation Planning With
the Revised Universal Soil Loss
Equation (RUSLE) (USDA, 1997).
This waiver is time-sensitive and is
dependent on when during the year a
construction activity takes place, how
long it lasts, and the expected rainfall
and intensity during that time. R factors
vary based on location. EPA anticipates
that this waiver opportunity responds to
concerns about the requirement for a
permit when it is not expected to rain,
especially in the arid areas of the U.S.
Under today's rule, the permitting
authority could waive the requirements
for a permit for time periods when the
rainfall-erosivity factor ("R" in RUSLE)
is less than five during the period of
construction. For the purposes of
calculating this waiver, the period of
construction activity starts at the time of
initial disturbance and ends with the
time of final stabilization. The operator
must submit a written certification to
the Director in order to apply for such
a waiver. EPA believes that those areas
receiving negligible rainfall during
certain times of the year are unlikely to
have storm events causing discharges
that could adversely impact receiving
streams. Consequently, BMPs would not
be necessary on those smaller sites. This
waiver is most applicable to projects of
short duration and to the arid regions of
the country where the occurrence of
rainfall follows a cyclic pattern—
between no rain and extremely heavy
rain. EPA review of rainfall records for
these areas indicates that, during
periods of the year when the number of
events and quantity of rain are low,
storm water discharges from the smaller
construction sites regulated under
today's rule should be minimal.
Some commenters supported the use
of the R factor as a waiver, while others
felt that a waiver based on rainfall
statistics ignores the fact that it may rain
on any given day and it is the
cumulative effect of wet weather
discharges which cause water quality
impairments. A commenter also asked
what happens in "El Nino" years when
significantly more rainfall than normal
occurs. Another commenter also
expressed concern that this waiver was
not based on a measured water quality
impact, but instead on an indicator of
potential impact. In response to the
previous comments, EPA notes that,
under CWA 402(p)(6), sources-are
designated on their potential for adverse
impact. Designation under the section is
prospective, not retrospective or
remedial only. For that reason, the
waivers under today's rule also operate
prospectively. EPA wanted to waive
requirements for sites with little
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potential to impair water quality, and
the R factor is the most straightforward
way to do this. The permitting
authority, if electing to use waivers,
could always suspend the use of
waivers in certain areas or during
certain times. In addition, the
permitting authority may choose to use
a lower R factor threshold than the one
set by EPA. Application of this waiver
is at the discretion of the permitting
authority, subject only to the limitation
that R factors cannot exceed 5.
One commenter expressed the need
for EPA to provide a justification for the
threshold value used for the R factor.
None of the commenters included any
data to show that EPA's proposed R
factor of 2 was either too high or too
low. EPA is using the R factor as an
indicator of the potential to impact
water quality. In an effort to determine
which R threshold should be used, EPA
conducted additional analysis of the
rainfall/runoff erosivity factor for 134
sites across the country. For an R factor
threshold of 5, approximately 12% of
sites would be waived if the project
period lasted 6 months, 27% for 3
months, 47% for 1 month, and 60% of
sites would be waived if the project
lasted for only 15 days. None of the 134
sites would be waived if the project
lasted an entire year. For an R factor
threshold of 2, approximately 9% of
sites would be waived if the project
period lasted 6 months, 15% for 3
months, 31% for 1 month, and 43% for
15 days. For an R factor threshold of 10,
approximately 22% of sites would be
waived if the project period lasted 6
months, 37% for 3 months, 60% for 1
month, and 78% for 15 days. EPA
believes that an R factor of 5 is an
adequate threshold to waive
requirements for sites because they
would not reasonably be expected to
impair water quality.
EPA will develop, as part of the tool
box described in section II.A.5,
guidance materials and computer or
web-accessible programs to assist
permitting authorities and construction
site discharges in determining if any
resulting storm water discharges from
specific projects are eligible for this
waiver.
//. Water Quality Waiver. The water
quality waiver under
§ 122.26(b)(15)(i)(B) is available where
storm water controls are not needed
based on a comprehensive, location-
specific evaluation of water quality
needs. The waiver is available based on
either an EPA-approved "total
maximum daily load" (TMDL) under
section 303(d) of the CWA that
addresses the pollutant(s) of concern or,
for sites discharging to non-impaired
waters that do not require TMDLs, an
equivalent analysis that has either
determined allocations for small
construction sites for the pollutant(s) of
concern or determined that such
allocations are not needed to protect
water quality based on consideration of
existing in-stream concentrations,
expected growth in pollutant
contributions from all sources, and a
margin of safety. The pollutants of
concern that must be addressed include
sediment or a parameter that addresses
sediment (such as total suspended
solids (TSS), turbidity or siltation) and
any other pollutant that has been
identified as a cause of impairment of
any water body that will receive a
discharge from the construction activity.
The operator must certify to the NPDES
permitting authority that the
construction activity will take place,
and storm water discharges will occur,
within the applicable drainage area
evaluated in the TMDLs or equivalent
analyses.
Today's rule modifies the approach in
the proposed rule. EPA proposed to
allow a waiver of permit requirements
for small construction if storm water
controls were determined to be
unnecessary based on "wasteload
allocations that are part of 'total
maximum daily loads' (TMDLs) that
address the pollutants of concern," or "a
comprehensive watershed plan,
implemented for the water body, that
includes the equivalents of TMDLs, and
addresses the pollutants of concern."
Commenters asked for clarification of
the terms "comprehensive watershed
plans" and "equivalent of TMDLs." EPA
intended that both terms would include
a comprehensive analysis that
determines that controls on small
construction sites are not needed based
on consideration of existing in-stream
concentrations, expected growth in
pollutant contributions from all sources,
and a margin of safety. Today's rule
makes this clarification.
One commenter pointed out that there
are no water quality standards for
suspended solids, the major pollutant
expected in discharges from
construction activity. The commenter
asserted that no waiver would ever be
available. Another commenter noted
that there are no sediment criteria
developed for streams/also making this
waiver useless. EPA notes that a number
of States and Tribes have water quality
standards that address TSS, which are
narrative in form, and that may serve as
a basis for water quality-based effluent
limits. As efforts to identify
impairments and improve water quality
progress, some States may yet develop
water quality standards for suspended
solids. Although several TMDLs for
sediment and related parameters have
been established, EPA does recognize
that currently it is extremely difficult to
develop TMDLs for sediment. EPA is
partially addressing this concern by
clarifying in today's rule that the
waivers may be based on a TMDL or
equivalent analyses for sediment or one
of the various pollutant parameters that
are a proxy for sediment. These include
TSS, turbidity and siltation.
Other commenters noted that this
waiver was unattainable if a TMDL or
equivalent analysis must be available for
every pollutant that could possibly be
present in any amount in discharges
from small construction sites regardless
of whether the pollutant is causing
water quality impairment. Commenters
asked that EPA identify what constitutes
the "pollutants of concern" for which a
TMDL or its equivalent must be
developed. EPA has revised the
proposed rule in response to these
concerns.
In order for discharges from
construction sites under five acres to
qualify for the water quality waiver of
today's rule, the construction site
operator must demonstrate that storm
water controls are not necessary for
sediment or a parameter that addresses
sediment (such as TSS, turbidity or
siltation) and any other pollutant that
has been identified as a cause of
impairment of any water body that will
receive a discharge from the
construction activity. Even if the water
body is not currently impaired for
sediment, today's rule requires an
analysis of the potential impacts of
sediment because the storm water
discharges from the construction
activity will be a new source of loading
to the water body that could constitute
a new impairment. Because the water
body will not necessarily have been
included on a "303(d) list" and a TMDL
will not necessarily be required, the rule
continues to allow an analysis that is
the equivalent of a TMDL. The
designation of storm water discharges
from small construction activity for
regulation in today's rule is intended to
control pollutants other than sediment.
This waiver provision requires a TMDL
or equivalent analysis for a pollutant
other than gross particulates (i.e.,
sediment and other particulate-focused
pollutant parameters) only if the
receiving water is currently impaired for
that pollutant.
One commenter expressed the
concern that construction operators will
not know if they are in a watershed
covered by a TMDL. To the extent this
is an operator's concern, he or she could
contact their NPDES permitting
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authority before applying for permit
coverage to determine if receiving water
is subject to a TMDL. Alternatively, the
permitting authority could identify the
TMDL (or equivalent analysis) areas in
the general permit or another operator-
accessible information source.
Another commenter expressed the
concern that a TMDL waiver is likely to
be ineffective because the TMDL list is
submitted only once every 2 years. By
the time a water is listed, the activity
may have been completed and
stabilized. The commenter argued that,
if a watershed is impaired due to
sediment from construction, then storm
water controls will still be needed,
because small construction can only be
waived when it is not identified as a
source of impairment. In response, EPA
notes that an analysis that is the
equivalent of a TMDL (specifically,
equivalent to the component of a TMDL
that comprehensively analyses existing
ambient conditions against the
applicable water quality standards) may
also provide a basis for waiver from the
default 1 acre designation. Also, even if
a water has been identified as impaired
for sediment, it is possible that a site or
category of sites may receive an
allocation that is sufficiently high
enough to allow discharges without
storm water controls.
c. Permit Process and Administration
The operator of the construction site,
as with any operator of a point source
discharge, is responsible for obtaining
coverage under a NPDES permit as
required by §122.21(b). The "operator"
of the construction site, as explained in
the current NPDES construction general
permit, is typically the party or parties
that either individually or collectively
meet the following two criteria: (1)
Operational control over the site
specifications, including the ability to
make modifications in the
specifications; and (2) day-to-day
operational control of those activities at
the site necessary to ensure compliance
\vith permit conditions (63 FR 7859). If
more than one party meets these
criteria, then each party involved would
typically be a co-permittee with any
other operators. The operator could be
the owner, the developer, the general
contractor, or individual contractor.
When responsibility for operational
control is shared, all operators must
apply.
in today's rule, EPA is not requiring
an NOI for NPDES general permits for
storm water discharges from
construction activities regulated by
§ 122.26(b)(15) if the NPDES permitting
authority finds that the use of NOIs
would be inappropriate (see
§ 122.28(b)(2)(v)). Under this approach,
the NPDES permitting authority will
have the discretion to decide whether or
not to require NOIs for discharges from
construction activity less than 5 acres.
Compared to the existing storm water
regulation, the permitting authority thus
has increased flexibility in program
implementation. EPA does recommend
the use of NOIs, however because NOIs
track permit coverage and provide a
useful information source to prioritize
inspections or enforcement. Requiring
an NOI allows for greater accountability
by, and tracking of, dischargers. This
simple permit application and reporting
mechanism also allows for better
outreach to the regulated community,
uses an existing and familiar
mechanism, and is consistent with the
existing requirements for storm water
discharges from larger construction
activities. Today's rule does not amend
the requirement for NOIs in general
permits for storm water discharges from
construction activity disturbing 5 acres
for more. See § 122.28(b)(2)(v).
EPA expects that the vast majority of
discharges of storm water associated
with small construction activity
identified in § 122.26(b)(15) will be
regulated through general permits. In
the event that an NPDES permitting
authority decides to issue an individual
construction permit, however,
individual application requirements for
these construction site discharges are
found at § 122.26{c)(l)(ii). For any
discharges of storm water associated
with small construction activity
identified in § 122.26(b)(15) that are not
authorized by a general permit, a permit
application made pursuant to
§ 122.26(c) must be submitted to the
Director by 3 years and 90 days after
publication of the final rule.
Some commenters expressed concern
that linear construction projects (e.g.,
roads, highways, pipelines) that cross
several jurisdictions will have to
comply with multiple sets of
requirements from various jurisdictions,
including multiple local governments
and States. EPA is limited in its options
to address these concerns because the
Agency cannot issue NPDES permits in
States authorized to implement the
NPDES program nor preempt other more
stringent local and State requirements.
EPA believes, however, that the option
for incorporating by reference the State,
Tribal or local requirements (see
discussion in Section II.I.2.d., Cross-
Referencing State/Local Erosion and
Sediment Control Programs) should
limit the administrative burden on the
operator responsible for discharges from
linear construction projects. If the
operator were to implement the most
comprehensive of the various
requirements for the whole project, it
could avoid confusion due to differing
requirements for different sections of
the project. In addition, linear utility
projects, which usually have a shorter
project period, are more likely to be
eligible for the rainfall erosivity waiver.
One commenter stated there was no
reason to delay the application period
for regulated storm water discharges
from small construction activities. The
commenter requested that the newly
regulated construction site discharges
should be required to seek permit
coverage within 90 days, as opposed to
3 years, of the effective date of the rule.
The Agency does not accept this
request. EPA anticipates that NPDES
permitting authorities will need one to
two years to develop adequate legal
authority to implement a program to
address this new category of discharges,
as well as to develop and issue general
permits. Moreover, to ensure effective
implementation to protect water quality,
regulatory authorities will need
additional time to inform small
construction site operators of
requirements and provide guidance and
training on these requirements.
Finally, EPA received a comment
requesting that the three year file
retention requirement be deleted for
discharges from small construction
sites. While EPA recognizes that the
three year record retention schedule
may be unnecessary for certain
construction projects, the Agency has
determined it is necessary to retain files
after the completion of the project to
ensure permit compliance, including
applicable construction site stabilization
enabling permit termination for such
sites.
d. Cross-Referencing State, Tribal or
Local Erosion and Sediment Control
Programs
In developing the NPDES permit
requirements for construction sites less
than 5 acres, members of the Storm
Water Phase IIFACA Subcommittee
asked EPA to try to minimize
redundancy in the construction permit
requirements. In response, today's rule
at § 122.44(s) provides for incorporation
of qualifying State, Tribal or local
erosion and sediment control program
requirements by reference into the
NPDES permit authorizing storm water
discharges from construction sites
(described under §§ 122.26(b)(15) and
(b)(14)(x)). The incorporation by
reference approach applies not only to
the newly regulated storm water
discharges (from construction activity
disturbing between 1 and 5 acres,
including designated sites, but
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68778 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
excluding waived sites) but also to
discharges from construction activity
disturbing 5 or more acres already
covered by the existing storm water
regulations. For this latter category of
discharges from construction activity
disturbing 5 or more acres, the
incorporation by reference approach
requires that the pollutant control
requirements from the incorporated
program also satisfy the statutory
standard for limitations representing
application of the best available
technology economically achievable
(BAT) and best conventional pollutant
control technology (BCT).
For permits issued for discharges from
small construction activity defined
under § 122.26(b)(15), a qualifying State,
Tribal, or local erosion and sediment
control program is one that includes the
program elements described under
§ 122.44(s)(l). These elements include
requirements for construction site
operators to implement appropriate
erosion and sediment control BMPs,
requirements to control waste, a
requirement to develop a storm water
pollution prevention plan, and
requirements to submit a site plan for
review. A storm water pollution
prevention plan includes site
descriptions, descriptions of appropriate
control measures, copies of approved
State, Tribal or local requirements,
maintenance procedures, inspection
procedures, and identification of non-
storm water discharges. The
construction site's permit would require
it to follow the requirements of the
qualifying local program rather than
require it to follow two different sets of
requirements. If a partially-qualifying
program does not have all of the
elements described under § 122.44(s)(l),
then the NPDES permitting authority
may still incorporate language in the
small construction site discharge's
permit that requires the construction
site operator to follow the program, but
the construction site discharge permit
also must incorporate the missing
required elements in order to satisfy
CWA requirements.
The term "local" refers to the
geographic area of applicability, not the
form of government that develops and
administers the program. Thus, a
qualifying federal erosion and control
program, such as certain programs
developed and administered by the
federal Bureau of Land Management,
could be a qualifying local program.
As a result of this provision, local
requirements will, in effect, provide the
substantive construction site erosion
and sediment control requirements for
the NPDES permit authorization.
Therefore, by following one set of
erosion and sediment control
requirements, construction site
operators satisfy both local and NPDES
permit requirements without
duplicative effort. At the same time,
noncompliance with the referenced
local requirements will be considered
noncompliance with the NPDES permit
which is federally enforceable. The
NPDES permitting authority will, of
course, retain the discretion to decide
whether to include the alternative
requirements in the general permit. EPA
believes that this approach will best
balance the need for consideration of
specific local requirements and local
implementation with the need for
federal and citizen oversight, and will
extend supplemental NPDES
requirements to control storm water
discharges from construction sites.
EPA developed the "incorporation by
reference" approach based on
implementation efforts designed by the
State of Michigan. Michigan relies on
localities to develop substantive
controls for storm water discharges
associated with construction activities
on a localized basis. Localities,
however, are not required to do so. In
areas where the local authority does not
choose to participate, the State
administers the sedimentation and
erosion control requirements. The State
agency, as the NPDES permitting
authority, receives an NOI (termed
"notice of coverage" by Michigan)
under the general permit and tracks and
exercises oversight, as appropriate, over
the activity causing the storm water
discharge. Michigan's goal under these
procedures is to utilize the existing
erosion and sediment control program
infrastructure authorized under State
law for storm water discharge
regulation. (See U.S. Environmental
Protection Agency, Office of Water.
January 7, 1994. Memo: From Michael
B. Cook, Director OWEC, to Water
Management Division Directors,
Regarding the "Approach Taken by
Michigan to Regulate Storm Water
Discharges from Construction
Activities.")
Most commenters supported the
general concept of incorporating by
reference qualifying programs. Two
commenters expressed concern that
different local construction
requirements will create an impossible
regulatory scheme for builders who
work in different localities. EPA
believes that allowing States to
incorporate qualifying programs by
reference will minimize the differences
for builders who work in different areas
of the State. These differences already
exist, however, not only for erosion and
sediment controls, but also other aspects
of construction. In any event, the
criteria for qualification for localized
programs should provide a certain
degree of standardization for various
localities' requirements. EPA expects
that the new rule for construction and
post-construction BMPs being
developed under CWA section 304(m)
will also encourage standardization of
local requirements. (See discussion of
this new rulemaking in section II.D.l,
Federal Role of this preamble).
Two commenters requested that an
"incorporation by reference" should
include permission, in writing, from the
qualifying local program administrator
because of a perceived extra burden on
the referenced program. Any program
requirements incorporated by reference
in NPDES permits should already apply
to construction site dischargers in the
applicable area and therefore should not
add any additional burden to the
referenced program. EPA has left to the
discretion of the permitting authority
the decision on whether to seek
permission from the qualifying program
before cross-referencing it in an NPDES
permit.
One commenter stated that a
qualifying local program should require
a SWPPP. The proposed rule defined
the qualifying local program as a
program the meets the minimum
program requirements established in the
proposed construction minimum
control measure for small MS4s. To
ensure consistency in the controls for
storm water discharges between the
larger, already regulated construction
sites and the discharges from smaller
sites that will be regulated as a result of
today's rule, EPA has made a change to
define a qualifying local program as one
that includes the elements described in
§122.44(s)(l). Section 122.44(s)(l)
requires the development and
implementation of a storm water
pollution prevention plan as a criterion
for qualification of local programs for
incorporation by reference. As noted
above, if a qualifying program does not
include all the elements in § 122.44(s)(l)
then the permitting authority will need
to specify the missing elements in order
to rely on the incorporation by reference
approach.
One commenter asked what happens
in regard to the use of qualifying
programs when a construction site
operator is also the qualifying local
program operator. The provision for
incorporation by reference applies in
this situation also. The local program
operator will be required to comply
with requirements it has established for
others.
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68779
e. Alternative Approaches
EPA received a number of comments
on alternative permitting approaches.
Several commenters supported
regulating discharges only from those
construction sites within urbanized
areas. Other commenters opposed this
approach. EPA chose to address storm
water discharges from construction sites
located both within and outside
urbanized areas because of the potential
for adverse water quality impact from
storm water discharges from smaller
sites in all areas. Regulating only those
sites within urbanized areas would have
excluded a large number of potential
contributors to water quality
impairment and would not address large
areas of new development occurring on
the outer fringes of urbanized areas. In
fact, designating only small construction
discharges within urbanized areas might
create a perverse incentive for building
only outside urbanized areas. Such an
incentive would be inconsistent with
the Agency's intention behind
designating to protect water quality. The
Agency intends that designation to
protect water quality in today's rule
should be both remedial and preventive.
A number of commenters encouraged
EPA to cover municipal construction
activities under the small MS4 general
permit, instead of issuing a separate
NPDES construction permit to these
municipal construction projects.
Similarly, a number of commenters
supported EPA giving industrial
facilities the option of having storm
water from construction activities on the
site covered by the industrial storm
water permit. Several other commenters
found that combining multiple permit
types under one general permit
introduced a degree of complexity
which was confusing to permittees.
Permitting authorities have the option of
combining MS4 and construction
permits or industrial and construction
permits, however, specific requirements
for each would still need to be included
in the permit issued. EPA agrees that
this would probably result in a more
complex and confusing permit
compared to the existing component
permits.
Several commenters supported an
alternative for regulated small MS4s
where a local qualified program alone,
without an NPDES permit, is sufficient
to enforce compliance with construction
site discharge requirements. On the
other hand, one commenter stated that
linking the local construction erosion
and sediment control program to the
existing NPDES program for storm water
from larger construction has driven
improvements in many local programs.
Another commenter stated that the
potential fines under the NPDES
program will encourage compliance and
will be much stronger than any fines a
local program may have. EPA agrees
that the NPDES program is the best
approach to address water quality
impacts from construction sites and
provides benefits such as accountability
and federal enforcement.
A number of commenters supported
issuing one permit for each construction
company, instead of a permit for each
individual construction activity (also
requested for storm water discharges
from the larger, already regulated
construction sites]. Other commenters
found that a 'licensing' program for
construction site operators would have
many problems, including identifying
who to permit and tracking information
on active sites. EPA is regulating only
the storm water discharges associated
with construction activity from small
sites, not the construction activity itself.
Separate NPDES permits (either
individual or general permit coverage)
for construction site discharges avoid
potential problems in tracking sites and
operator accountability. Section
122.28(b)(2)(v) gives permitting
authorities the option to issue a general
permit without requiring an NOI. If an
NOI is not required for each activity,
permitting authorities could pursue
other options such as a company-wide
NOI, license instead of an NOI, or
another mechanism.
2. Other Sources
In the Storm Water Discharges
Potentially Addressed by Phase II of the
National Pollutant Discharge
Elimination System Storm Water
Program, Report to Congress, March
1995, ("Report") submitted by EPA
pursuant to CWA section 402(p)(5), EPA
examined the remaining unregulated
point sources of storm water for the
potential to adversely affect water
quality. Due to very limited national
data on which to estimate pollutant
loadings on the basis of discharge
categories, the discussion of the extent
of unregulated storm water discharges is
limited to an analysis of the number and
geographic distribution of the
unregulated storm water discharges.
Therefore, EPA is not designating any
additional unregulated point sources of
storm water on a nationwide, categorical
basis. Instead, the remainder of the
sources will be regulated based on case-
by-case post-promulgation designations
by the NPDES permitting authority.
EPA did, however, evaluate a variety
of categories of discharges for potential
designation in the Report. EPA's efforts
to identify sources and categories of
unregulated storm water discharges for
potential designation for regulation in
today's rule started with an examination
of approximately 7.7 million
commercial, retail, industrial, and
institutional facilities identified as
"unregulated." In general, the
distribution of these facilities follows
the distribution of population, with a
large percentage of facilities
concentrated within urbanized areas
(see page 4-35 of the Report). This
examination resulted in identification of
two general classes of facilities with the
potential for discharging pollutants to
waters of the United States through
storm water point sources.
The first group (Group A) included
sources that are very similar, or
identical, to regulated "storm water
discharges associated with industrial
activity" but that were not included in
the existing storm water regulations
because EPA used SIC codes in defining
the universe of regulated industrial
activities. By relying on SIC codes, a
classification system created to identify
industries rather than environmental
impacts from these industries
discharges, some types of storm water
discharges that might otherwise be
considered "industrial" were not
included in the existing NPDES storm
water program. The second general class
of facilities (Group B) was identified on
the basis of potential for activities and
pollutants that could contribute to storm
water contamination.
EPA estimates that Group A has
approximately 100,000 facilities.
Discharges from facilities in this group,
which may be of high priority due to
their similarity to regulated storm water
discharges from industrial facilities,
include, for example, auxiliary facilities
or secondary activities (e.g.,
maintenance of construction equipment
and vehicles, local trucking for an
unregulated facility such as a grocery
store) and facilities intentionally
omitted from existing storm water
regulations (e.g., publicly owned
treatment works with a design flow of
less than 1 million gallons per day,
landfills that have not received
industrial waste).
Group B consists of nearly one
million facilities. EPA organized Group
B sources into 18 sectors for the
purposes of the Report. The automobile
service sector (e.g., gas/service stations,
general automobile repair, new and
used car dealerships, car and truck
rental) makes up more than one-third of
the total number of facilities identified
in all 18 sectors.
EPA conducted a geographical
analysis of the industrial and
commercial facilities in Groups A and
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B. The geographical analysis shows that
the majority are located in urbanized
areas (see Section 4.2.2, Geographic
Extent of Facilities, in the Report). In
general, about 61 percent of Group A
facilities and 56 percent of Group B
facilities are located in urbanized areas.
The analysis also showed that nearly
twice as many industrial facilities are
found in all urbanized areas as are
found in large and medium
municipalities alone. Notable
exceptions to this generalization
included lawn/garden establishments,
small unregulated animal feedlots,
wholesale livestock, farm and garden
machinery repair, bulk petroleum
wholesale, farm supplies, lumber and
building materials, agricultural
chemical dealers, and petroleum
pipelines, which can frequently be
located in smaller municipalities or
rural areas.
In identifying potential categories of
sources for designation in today's
notice, EPA considered designation of
discharges from Group A and Group B
facilities. EPA applied three criteria to
each potential category in both groups
to determine the need for designation:
(1) The likelihood for exposure of
pollutant sources included in that
category, (2) whether such sources were
adequately addressed by other
environmental programs, and (3)
whether sufficient data were available at
this time on which to make a
determination of potential adverse water
quality impacts for the category of
sources. As discussed previously, EPA
searched for applicable nationwide data
on the water quality impacts of such
categories of facilities.
By application of the first criterion,
the likelihood for exposure, EPA
considered the nature of potential
pollutant sources in exposed portions of
such sites. As precipitation contacts
industrial materials or activities, the
resultant runoff is likely to mobilize and
become contaminated by pollutants. As
the size of these exposed areas
increases, EPA expects a proportional
increase in the pollutant loadings
leaving the site. If EPA concluded that
a category of sources has a high
potential for exposure of raw materials,
intermediate products, final products,
waste materials, byproducts, industrial
machinery, or industrial activity to
rainfall, the Agency rated that category
of sources as having "high" potential for
adverse water quality impact. EPA's
application of the first criterion showed
that a number of Group A and B sources
have a high likelihood of exposure of
pollutants.
Through application of-the second
criterion, EPA assessed the likelihood
that pollutant sources are regulated in a
comprehensive fashion under other
environmental protection programs,
such as programs under the Resource
Conservation and Recovery Act (RCRA)
or the Occupational Health and Safety
Act (OSHA). If EPA concluded that the
category of sources was sufficiently
addressed under another program, the
Agency rated that source category as
having "low" potential for adverse
water quality impact. Application of the
second criterion showed that some
categories were likely to be adequately
addressed by other programs.
After application of the third
criterion, availability of nationwide data
on the various storm water discharge
categories, EPA concluded that available
data would not support any such
nationwide designations. While such
data could exist on a regional or local
basis, EPA believes that permitting
authorities should have flexibility to
regulate only those categories of sources
contributing to localized water quality
impairments.
EPA received comments requesting
designation of additional industrial,
commercial and retail sources (e.g.
industrial activity "look-alikes", roads,
commercial facilities and institutions,
and vehicle maintenance facilities) in
the final rule, because the commenters
believe that the data exist to support
national designation of some of these
sources. Other comments were received
opposing designation of any additional
sources. Today's rule does not designate
any additional industrial or commercial
category of sources either because EPA
currently lacks information indicating a
consistent potential for adverse water
quality impact or because of EPA's
belief that the likelihood of adverse
impacts on water quality is low, with
some possible exceptions on a more
local basis. Since the time the Agency
submitted the Report, EPA has
continued to seek additional data and
has requested available data from the
FACA members. If sufficient regional or
nationwide data become available in the
future, the permitting authority could at
that time designate a category of sources
or individual sources on a case-by-case
basis. Therefore, today's rule encourages
control of storm water discharges from
Groups A and B through self-initiated,
voluntary BMPs, unless the discharge
(or category of discharges) is designated
for permitting by the permitting
authority. See discussion in section I.D.,
EPA's Reports to Congress.
3. ISTEA Sources
Provisions within the Intermodal
Surface Transportation and Efficiency
Act (ISTEA) of 1991 temporarily
exempted storm water discharges
associated with industrial activity that
are owned or operated by municipalities
serving populations less than 100,000
people (except for airports, power
plants, and uncontrolled sanitary
landfills) from the need to apply for or
obtain a storm water discharge permit
(section 1068(c) of ISTEA). Congress
extended the NPDES permitting
moratorium for these facilities to allow
small municipalities additional time to
comply with NPDES requirements for
certain sources of industrial storm
water. The August 7,1995 storm water
final rule (60 FR 40230) further
extended this moratorium until August
7, 2001. However, today's rule changes
this deadline so that previously
exempted industrial facilities owned or
operated by municipalities serving
populations less than 100,000 people,
must now submit an application for a
permit within 3 years and 90 days from
date of publication of today's rule.
EPA received comments
recommending that permit requirements
for municipally owned or operated
industrial storm water discharges,
including those previously exempt
under ISTEA, be included in a single
NPDES permit for all MS4 storm water
discharges. The existing NPDES
regulations already provide permitting
authorities the ability to issue a single
"combination" permit for MS4
discharges. However, if the permitting
authorities chose to issue this type of
permit, they must make sure that in
doing so, they are not creating a double
standard for industrial facilities covered
under the combination permit versus
those covered under separate general or
individual permits. In order to avoid
this double standard, combination
permits would have to contain
requirements that are the same or very
similar to the requirements found in
separate MS4 and industrial permits,
i.e., the minimum measures and other
necessary requirements of an MS4
permit, and the SWPPP, monitoring and
reporting requirements, and other
necessary requirements of an industrial
permit. If such a combined MS4 general
permit were issued, the regulations.
require that each discharger submit
NOIs for their respective discharges,
except for discharges from small
construction activities. Flexibility exists
in developing a combination NOI which
could reduce the need to submit
duplicative information, e.g. owner/
operator name and address. The
combination NOI would still need to
require specific information for each
separate municipally owned or operated
industrial location, including
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68781
construction projects disturbing 5 or
more acres. The regulations at
§ 122.28(bK2)(ii) list the necessary
contents of an NOI, which require: the ,
facility name, facility address, type of
facility or discharge and receiving
stream for each industrial discharge
location. When viewed in its entirety, a
combination permit, which by necessity
would need to contain all elements of
otherwise separate industrial and MS4
permit requirements, and require NOI
information for each separate industrial
activity, may have few advantages when
compared to obtaining separate MS4
and industrial general permit coverage.
In order to allow the permitting
authority to issue a single storm water
permit for the MS4 and all municipally
owned or operated industrial facilities,
including those previously exempt
under ISTEA, today's rule requires
applications for ISTEA sources within 3
yrs and 90 days from date of publication
of today's rule. The permitting authority
has the ultimate decision to determine
whether or not a single all-
encompassing MS4 permit is
appropriate.
4. Residual Designation Authority
The NPDES permitting authority's
existing designation authority, as well
as the petition provisions are being
retained. Today's rule contains two ,
provisions related to designation
authority at §§ 122.26(a)(9)(i)(C) and (D).
Subsection (C) adds designation
authority where storm water controls
are needed for the discharge based upon
wasteload allocations that are part of
TMDLs that address the pollutant(s) of
concern. EPA intends that the NPDES
permitting authority have discretion in
the matter of designations based on
TMDLs under subsection (C).
Subsection (D) carries forward residual
designation authority under former
§ 122.26(g), and has been modified to
provide clarification on categorical
designation. Under today's rule, EPA
and authorized States continue to
exercise the authority to designate
remaining unregulated discharges
composed entirely of storm water for
regulation on a case-by-case basis
(including § 123.35). Individual sources
are subject to regulation if EPA or the
State, as the case may be, determines
that the storm water discharge from the
source contributes to a violation of a
water quality standard or is a significant
contributor of pollutants to waters of the
United States. This standard is based on
the text of section CWA 402 (p). In
today's rule, EPA believes, as Congress
did in drafting section CWA
402(p)(2)(E), that individual instances of
storm water discharge might warrant
special regulatory attention, but do not
fall neatly into a discrete,
predetermined category. Today's rule
preserves the regulatory authority to
subsequently address a source (or
category of sources) of storm water
discharges of concern on a localized or
regional basis. For example, as States
and EPA implement TMDLs, permitting
authorities may need to designate some
point source discharges of storm water
on a categorical basis either locally or
regionally in order to assure progress
toward compliance with water quality
standards in the watershed.
EPA received comments asking that
§ 122.26(a)(9)(i)(D) as proposed be
modified to include specific language
clarifying the permitting authority's
ability to designate additional sources
on a categorical basis as explained in
the preamble to the proposed rule. One
comment requested that the designation
language include "categories of sources
on a Statewide basis." EPA agrees that
the intent of the language may not have
been clear regarding categorical
designation. Today's rule modifies
subsection (D) to clarify that the
designation authority can be applied
within different geographic areas to any
single discharge (i.e., a specific facility),
or category of discharges that are
contributing to a violation of a water
quality standard or are significant
contributors of pollutants to waters of
the United States. The added term
"within a geographic area" allows
"State-wide" or "watershed-wide"
designation within the meaning of the
terms.
One commenter questioned the
Agency's legal authority to provide for
such residual designation authority. The
stakeholder argued that the lapse of the
October 1, 1994, permitting moratorium
under CWA section 402(p)(l) eliminated
the significance of the CWA section
402(p)(2) exceptions to the moratorium,
including the exception for discharges
of storm water determined to be
contributing to a violation of a water
quality standard or a significant
contributor of pollutants under CWA
section 402(p)(2)(E). The stakeholder
further argued that EPA's authority to
designate sources for regulation under
CWA section 402(p)(6) is limited to
storm water discharges other than those
described under CWA section 402(p)(2).
Because CWA section 402(p)(2)(E)
describes individually designated
discharges, the stakeholder concluded
that regulations under CWA section
402(p)(6) cannot provide for post-
promulgation designation of individual
sources. EPA disagrees.
First, as explained previously, EPA
anticipates that NPDES permitting
authorities may yet determine that
individual unregulated point sources of
storm water discharges require
regulation on a case-by-case basis. This
conclusion is consistent with the
Congress' recognition of the potential
need for such designation under the first
phase of storm water regulation as
described in CWA section 402(p)(2)(E).
Under CWA section 402(p)(2)(E),
Congress recognized the need for both
EPA and the State to retain authority to
regulate unregulated point sources of
storm water under the NPDES permit
program. Second, to the extent that
CWA section 402(p)(6) requires
designation of a "category" of sources,
the permitting authority may designate
such (as yet unidentified) sources as a
category that should be regulated to
protect water quality. Though such
sources may exist and discharge today,
if neither EPA nor the State/Tribal
NPDES permitting authority has
designated the source for regulation
under CWA section 402(p)(2)(E) to date,
then CWA section 402(p)(6) provides
the authority to designate such sources.
The Agency can designate a category
of "not yet identified" sources to be
regulated, based on local concerns, even
if data do not exist to support
nationwide regulation of such sources.
EPA does not interpret the language in
CWA section 402(p) to preclude States
from exercising designation authority
under these provisions because such
designation (and subsequent regulation
of designated sources) is within the
"scope" of the NPDES program.
EPA also believes that sources
regulated pursuant to a State
designation are part of (and regulated
under) a federally approved State
NPDES program, and thus subject to
enforcement under CWA sections 309
and 505. Under existing NPDES State
program regulations, State programs that
are "greater in scope of coverage" are
not part of the federally-approved
program. By contrast, any such State
regulation of sources in this "reserved
category" will be within the scope of the
federal program because today's rule
recognizes the need for such post
promulgation designations of
unregulated point sources of storm
water. Such regulation will be "more
stringent" than the federal program
rather than "greater in scope of
coverage" (40 CFR 123.l(h)).
EPA does not interpret the
congressional direction in CWA section
402(p)(6) to preclude regulation of point
sources of storm water that should be
regulated to protect water quality.
Under CWA section 510, Congress
expressly recognized and preserved the
authority of States to adopt and enforce
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more stringent regulation of point
sources, as well as any requirement
respecting the control or abatement of
pollution. Section 510 applies, "except
as expressly provided" in the CWA.
CWA section 502(14) does expressly
provide affirmative limitations on the
regulation of certain pollutant sources
through the point source control
program, the NPDES permitting
program. Section 502(14) excludes
agricultural storm water and return
flows from irrigated agriculture from the
definition of point source, and section
402(1) limits applicability of the section
402 permit program for return flows
from irrigated agriculture, as well as for
storm water runoff from certain oil, gas,
and mining operations. Unlike sections
502(14) and 402(1), EPA does not
interpret CWA section 402(p)(6) as an
express provision limiting the authority
to designate point sources of storm
water for regulation on a case-by-case
basis after the promulgation of final
regulations. Any source of storm water
discharge is encouraged to assess its
potential for storm water contamination
and take preventive measures against
contamination. Such proactive actions
could result in the avoidance of future
regulation.
One comment was received
requesting clarification of the term
"non-municipal" in § 122.26(a)(9)(ii).
The commenter is concerned that the
term "non-municipal," in this context,
implies that municipally owned or
operated facilities cannot be designated.
The term "non-municipal" in this
context refers to the universe of
unregulated industrial and commercial
facilities that could potentially be
designated according to § 122.26(a)(9)(i)
authority. There is no exemption for
municipally owned or operated
facilities under these designation
provisions.
Finally, EPA received comments and
evaluated the proposal under which
operators of regulated small, medium,
and large MS4s would be responsible
for controlling discharges from
industrial and other facilities into their
systems in lieu of requiring NPDES
permit coverage for such facilities. EPA
did not adopt this framework due to
concerns with administrative and
technical burden on the MS4 operators,
as well as concerns about such an
intergovernmental mandate.
/. Conditional Exclusion for "No
Exposure" of Industrial Activities and
Materials to Storm Water
1. Background
In 1992, the Ninth Circuit court
remanded to EPA for further
rulemaking, a portion of the definition
of "storm water discharge associated
with industrial activity" that excluded
the category of industrial activity
identified as "light industry" when
industrial materials and/or activities
were not-exposed to storm water. See
NRDCv. EPA, 966 F.2d 1292,1305 (9th
Cir. 1992). Today's final rule responds
to that remand. In the 1990 storm water
regulations, EPA excluded the light
industry category from the requirement
for an NPDES permit if the industrial
materials and/or activities were not
"exposed" to storm water (see
§ 122.26(b)(14)). The Agency had
reasoned that most of the activity at
these types of facilities takes place
indoors and that emissions from stacks,
use of unhoused manufacturing
equipment, outside material storage or
disposal, and generation of large
amounts of dust or particles would be
atypical (55 FR 48008, November 16,
1990).
The Ninth Circuit determined that the
exemption was arbitrary and capricious
for two reasons. First, the court found
that EPA had not established a record to
support its assumption that light
industry that was not exposed to storm
water was not "associated with
industrial activity," particularly when
other types of industrial activity not
exposed to storm water remained
"associated with industrial activity."
The court specifically found that "[t]o
exempt these industries from the normal
permitting process based on an
unsubstantiated assumption about this
group of facilities is arbitrary and
capricious." Second, the court
concluded that the exemption
impermissibly "altered the statutory
scheme" for permitting because the
exemption relied on the unverified
judgment of the light industrial facility
operator to determine non-applicability
of the permit application requirements.
In other words, the court was critical
that the operator would determine for
itself that there was "no exposure" and
then simply not apply for a permit
without any further action. Without a
basis for ensuring the effective operation
of the permitting scheme—-either that
facilities would self-report actual
exposure or that EPA would be required
to inspect and monitor such facilities—
the court vacated and remanded the rule
to EPA for further rulemaking.
One of the major concerns expressed
by the FACA Committee, was that EPA
streamline and reinvent certain
troublesome or problematic aspects of
the existing permitting program for
storm water discharges. One area
identified was the mandatory
applicability of the permitting program
to all industrial facilities, even those
"light industrial" activities that are of
very low risk or of no risk to storm
water contamination. Such dischargers
may not have any industrial sources of
storm water contamination on the plant
site, yet they are still required to apply
for an NPDES storm water permit and
meet all permitting requirements.
Examples of such facilities are a soap
manufacturing plant (SIC Code 28) or
hazardous waste treatment and disposal
facility, where all industrial activities,
even loading docks, are inside a
building or under a roof.
Although they did not provide a
written report, the FACA Committee
members advised EPA that the existing
storm water program should be revised
to allow such facilities to seek an
exclusion from the NPDES storm water
permitting requirements. The
Committee agreed that such an
exclusion should also provide a strong
incentive for other industrial facilities
that conduct industrial activities
outdoors to move the activities under
cover or into buildings to prevent
contamination of rainfall and storm
water runoff. The committee believed
that such a "no exposure" permit
exclusion could be a valuable incentive
for storm water pollution prevention.
In today's final rule, the Agency
responds to both of the bases for the
court's remand. The exclusion from
permitting based on "no exposure"
applies to all industrial categories listed
in the existing storm water regulations
except construction. The court's opinion
rejected EPA's distinction between light
industry and other industry, but it did
not preclude an interpretation that treats
all "non-exposed" industrial facilities in
the same fashion. Presuming that an
industrial facility adequately prevents
exposure of industrial materials and
activities to storm water, today's rule
treats discharges from "non-exposed"
industrial facilities in a manner similar
to the way Congress intended for
discharges from administrative
buildings and parking lots. Specifically,
permits will not be required for storm
water discharges from these facilities on
a categorical basis.
To assure that discharges from
industrial facilities really are similar to
discharges from administrative
buildings and parking lots, and to
respond to the second basis for the
court's remand, the permitting
exclusion is "conditional". The person
responsible for a point source discharge
from a "no exposure" industrial source
must meet the conditions of the
exclusion, and complete, sign and
submit the certification to the
permitting authority for tracking and
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accountability purposes. EPA believes
today's rule, therefore, is fully
consistent with the direction provided
by the court.
EPA relied upon the "no exposure"
concept discussed by the FACA
Committee in developing the "no
exposure" provisions of today's rule.
EPA is deleting the sentence regarding
"no exposure" for the facilities in
§ 122.26(b)(14)(xi) and adding a new
§ 122.26(g) titled "Conditional
Exclusion for No Exposure of Industrial
Activities to Storm Water." The "no
exposure" provision will make storm
water discharges from all classes of
industrial facilities eligible for
exclusion, except storm water
discharges from regulated construction
activities. Regulated construction
activities cannot claim "no exposure"
because the main pollutants of concern
(e.g., sediment) generally cannot
entirely be sheltered from storm water.
Today's rule represents a significant
expansion in the scope of the "no
exposure" provision originally
promulgated in the 1990 rule, which
was only for storm water discharges
from light industry. The intent of
today's "no exposure" provision is to
provide a simplified method for
complying with the CWA to all
industrial facilities that are entirely
indoors. This includes facilities that are
located within a large office building, or
at \vhich the only items permanently
exposed to precipitation are roofs,
parking lots, vegetated areas, and other
non-industrial areas or activities.
EPA received several comments
related to storm water runoff from
parking lots, rooftops, lawns, and other
non-industrial areas of an industrial
facility. Storm water discharges from
these areas, which may contain
pollutants or which may result in
additional storm water flows, are not
directly regulated under the existing
storm water permitting program because
they are not "storm water discharges
associated with industrial activity".
Many comments on this issue supported
maintaining the exclusion from the
existing regulations for storm water
permitting for discharges from
administrative buildings, parking lots,
and other non-industrial areas. Other
comments opposed allowing the
continued exclusion for discharges from
non-industrial areas of the site because
discharges from these areas are
potentially a significant cause of
receiving water impairment. These
comments urged that such discharges
should not be excluded from NPDES
permit coverage. Today's rule does not
require permit coverage for discharges
from a facility's exposed areas that are
separate from industrial activities such
as runoff from office buildings and
accompanying parking lots, lawns and
other non-industrial areas. This
approach is consistent with the existing
storm water rules which were based on
Congress's intent to exclude non-
industrial areas such as "parking lots
and administrative and employee
buildings." 133 Cong. Rec. 985 (1987).
EPA also lacks data indicating that
discharges from these areas at an
industrial facility cause significant
receiving water impairments. Therefore,
the non-industrial areas at a facility do
not need to be assessed as part of the
"no exposure" certification.
EPA received comments related to
industrial facilities that achieve "no
exposure" by constructing large
amounts of impervious surfaces, such as
roofs, where previously there were
pervious or porous surfaces into which
storm water could infiltrate. Some
commenters made the point that large
amounts of impervious area may cause
a significant increase in storm water
volume flowing off the industrial
facility, and thus may cause adverse
receiving water impacts simply due to
the increased quantity of storm water
flow. Some commenters said that storm
water discharges from impervious areas
at an industrial facility are generally
more frequent, and often larger, than
discharges from the pre-existing natural
surfaces. They believe that these
discharges will contain pollutants
typical of commercial areas and roads
and are an equal threat to direct human
uses of the water and can cause equal
damage to aquatic life and its habitat.
Other commenters believe that if
Congress or EPA addresses the issue of
flow, it should be addressed on a
broader scale than merely through the
"no exposure" exclusion, and that EPA
has no authority under any existing
legal framework to regulate flow
directly. Some commenters stated that
developing federal parameters for the
control of water quantity, i.e. flow,
would result in federal intrusion into
land use planning, an authority that
they claim is solely within the purview
of State governments and their political
subdivisions.
EPA is not attempting to regulate flow
via the "no exposure" provisions. EPA
does agree, however, that increases in
impervious surfaces can result in
increased runoff volumes from the site
which in turn may increase pollutant
loading. In addition, the Agency notes
that in some States water quality
standards include water quality criteria
for flow or turbidity. Therefore, in order
to provide a minimal amount of
information on possible impacts from
increased pollutant loading and runoff
volume, EPA's "no exposure"
certification form (see Appendix 4) asks
the discharger to indicate if they have
paved or roofed over a formerly
exposed, pervious area in order to
qualify for the "no exposure" exclusion.
If the answer is yes, the discharger must
indicate, by choosing from three
possible responses, approximately how
much impervious area was created to
achieve "no exposure". The choices are:
(1) less than 1 acre, (2) 1 to 5 acres, and
(3) more than 5 acres. This requirement
provides additional information that
will aid in determining if discharges
from the facility are causing adverse
receiving water impacts. EPA intends to
prevent water quality impacts resulting
from increased discharges of pollutants,
which may result from increased
volume of runoff. In many cases,
consideration of the increased flow rate,
velocity and energy of storm water
discharges, following construction of
large amounts of impervious surfaces,
must be taken into consideration in
order to reduce the discharge of
pollutants, to meet water quality
standards and to prevent degradation of
receiving streams. EPA recommends
that dischargers consider these factors
when making modifications to their site
in order to qualify for the "no exposure"
exclusion.
2. Today's Rule
In order to claim relief under the "no
exposure" provision, the discharger of
an otherwise regulated facility must
submit a no exposure certification that
incorporates the questions of
§ 122.26(g)(4)(iii) to the NPDES
permitting authority once every 5 years.
This provision applies across all
categories of industrial activity covered
by the existing program, except
discharges from construction activities.
In addition to submitting a "no
exposure" certification every 5 years,
the facility must allow the NPDES
permitting authority or operator of an
MS4 (where there is a storm water
discharge to the MS4) to inspect the
facility and to make such inspection
reports publicly available upon request.
Also, upon request, the facility must
submit a copy of the "no exposure"
certification to the operator of the MS4
into which the facility discharges (if
applicable). All "no exposure"
certifications must be signed in
accordance with the signatory
requirements of § 122.22. The "no
exposure" certification is non-
transferable. In the event that the facility
operator changes, the new discharger
must submit a new "no exposure"
certification.
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68784 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
Members of the FACA Committee
urged that EPA not allow dischargers
certifying "no exposure" to take actions
to qualify for this provision that result
in a net environmental detriment. In
developing a regulatory implementation
mechanism, however, EPA found that
the phrase "no net environmental
detriment," was too imprecise to use
within this context. Therefore, today's
rule addresses this issue by requiring
information that should help the
permitting authority to determine
whether actions taken to qualify for the
exclusion interfere with the attainment
or maintenance of water quality
standards, including designated uses.
Permitting authorities will be able,
where necessary, to make a
determination by evaluating the
activities that changed at the industrial
site to achieve "no exposure", and
assess whether these changes cause an
adverse impact on, or have the
reasonable potential to cause an
instream excursion of, water quality
standards, including designated uses.
EPA anticipates that many efforts to
achieve "no exposure" will employ
simple good housekeeping and
contaminant cleanup activities. Other
efforts may involve moving materials
and industrial activities indoors into
existing buildings or structures.
In very limited cases, industrial
operators may make major changes at a
site to achieve "no exposure". These
efforts may include constructing a new
building or cover to eliminate exposure
or constructing structures to prevent
run-on and storm water contact with
industrial materials or activities. Where
major changes to achieve "no exposure"
increase the impervious area of the site,
the facility operator must provide this
information on the "no exposure"
certification form as discussed above.
Using this and other available data and
information, permitting authorities
should be able to assess whether any
major change has resulted in increased
pollutant concentrations or loadings,
toxicity of the storm water runoff, or a
change in natural hydrological patterns
that would interfere with the attainment
and maintenance of water quality
standards, including designated uses or
appropriate narrative, chemical,
biological, or habitat criteria where such
State or Tribal water quality standards
exist. In these instances, the facility
operator and their NPDES permitting
authority should take appropriate
actions to ensure that attainment or
maintenance of water quality standards
can be achieved. The NPDES permitting
authority should decide if the facility
must obtain coverage under an
individual or general permit to ensure
that appropriate actions are taken to
address adverse water quality impacts.
While the intent of today's "no
exposure" provision is to reduce the
regulatory burdens on industrial
facilities and government agencies, the
FACA Committee suggested that the
NPDES permitting authority consider a
compliance assessment program to
ensure that facilities that have availed
themselves of this "no exposure" option
meet the applicable requirements.
Inspections could be conducted at the
discretion of the NPDES authority and
be coordinated with other facility
inspections. EPA expects, however, that
the permitting authority will conduct
inspections when it becomes aware of
potential water quality impacts possibly
caused by the facility's storm water
discharges or when requested to do so
by adversely affected members of the
public. The intent of this provision is
that the 5 year "no exposure"
certification be fully available to, and
enforceable by, appropriate federal and
State authorities under the CWA.
Private citizens can enforce against
facilities for discharges of storm water
that are inconsistent with a "no
exposure" certification if storm water
discharges from such facilities are not
otherwise permitted and in compliance
with applicable requirements.
EPA received comments from owners,
operators and representatives of Phase I
facilities classified as "light industry" as
defined by the regulations at
§ 122.26(b)(14)(xi). The comments
recommended maintaining the approach
of the existing regulations which does
not require the discharger to submit any
supporting documentation to the
permitting authority in order to claim
the "no exposure" exclusion from
permitting. As discussed previously, the
"no exposure" concept was developed
in response to the Ninth Circuit court's
remand of part of the existing rules back
to EPA. The court found that EPA
cannot rely on the "unverified
judgment" of the facility. The comments
opposing documentation did not
address the "unverified judgment"
concern.
Today's rule is a "conditional"
exclusion from permitting which
requires all categories, including the
"light industrial" facilities that have no
exposure of materials to storm water, to
submit a certification to the permitting
authority. Upon receipt of a complete
certification, the permitting authority
can review the information, or call, or
inspect the facility if there are doubts
about the facility's "no exposure" claim.
Also, if the facility discharges into an
MS4, the operator of the MS4 can
request a copy of the certification, and
can inspect the facility. The public can
request a copy of the certification and/
or inspection reports. In adopting these
conditional "no exposure" provisions,
the Agency addressed the Ninth Circuit
court's ruling regarding the discharger's
unverified judgment.
EPA received one comment
requesting clarification on whether the
anti-backsliding provisions in the
regulations at § 122.44(1] apply to
industrial facilities that are currently
covered under an NPDES storm water
permit, and whether such facilities
could qualify for the "no exposure"
exclusion under today's rule. The anti-
backsliding provisions will not prevent
most industrial facilities that can certify
"no exposure" under today's rule from
qualifying for an exclusion from
permitting. The anti-backsliding
provisions contain 5 exceptions that
allow permits to be renewed, reissued or
modified with less stringent conditions.
One exception at § 122.44(1)(2)(A)
allows less stringent conditions if
"material and substantial alterations or
additions to the permitted facility
occurred after permit issuance which
justify the application of a less stringent
effluent limitation." Section
122.44(1)(B3(1) also allows less stringent
requirements if "information is
available which was not available at the
time of permit issuance and which
would have justified the application of •
less stringent effluent limitations at the
time of permit issuance." Facility's
operators who certify "no exposure"
and submit the required information
once every 5 years will have provided
the permitting authority "information
that was not available at the time of
permit issuance." Also, some facilities
may, in order to achieve "no exposure",
make "material and substantial
alterations or additions to the permitted
facility." Therefore, most facilities
covered under existing NPDES general
permits for storm water (e.g., EPA's
Multi-Sector General Permit) will be
eligible for the conditional "no
exposure" exclusion from permitting
without concern about the anti-
backsliding provisions. Such
dischargers will have met one or both of
the anti-backsliding exceptions detailed
above. Facilities that are covered under
individual permits containing numeric
limitations for storm water should
consult with their permitting authority
to determine whether the anti-
backsliding provisions will prevent
them from qualifying for the exclusion
from permitting (for that discharge
point) based on a certification of "no
exposure".
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EPA received several comments
regarding the timing of when the "no
exposure" certification should be
submitted. The proposed rule said that .
the "no exposure" certification notice
must be submitted "at the beginning of
each permit term or prior to
commencing discharges during a permit
term." Some commenters interpreted
this statement to mean that existing
facilities can only submit the
certification at the time a permit is being
issued or renewed. EPA intended the
phrase "at the beginning of each permit
term" to mean "once every 5 years" and
today's rule reflects this clarification.
EPA envisions that the NPDES storm
water program will be implemented
primarily through general permits
which are issued for a 5 year term.
Likewise the "no exposure" certification
term is 5 years. The NPDES permitting
authority will maintain a simple
registration list that should impose only
a minor administrative burden on the
permitting authority. The registration
list will allow for tracking of industrial
facilities claiming the exclusion. This
change allows a facility to submit a "no
exposure" certification at any time
during the term of the permit, provided
that a new certification is submitted
every 5 years from the time it is first
submitted (assuming that the facility
maintains a "no exposure" status). Once
a discharger has established that the
facility meets the definition of "no
exposure", and submits the necessary
"no exposure" certification, the
discharger must maintain their "no
exposure" status. Failure to maintain
"no exposure" at their facility could
result in the unauthorized discharge of
pollutants to waters of the United States
and enforcement for violation of the
CWA. Where a discharger believes that
exposure could occur in the future due
to some anticipated change at the
facility, the discharger should submit an
application and obtain coverage under
an NPDES permit prior to such
discharge to avoid penalties.
Where EPA is the permitting
authority, dischargers may submit a "no
exposure" certification at any time after
the effective date of today's rule. Where
EPA is not the permitting authority,
dischargers may not be able to submit
the certification until the non-federal
permitting authority completes any
necessary statutory or regulatory
changes to adopt this "no exposure"
provision. EPA recommends that the
discharger contact the permitting
authority for guidance on when the "no
exposure" certification should be
submitted.
EPA received comments on the
proposed rule requirement that the
discharger "must comply immediately
with all the requirements of the storm
water program including applying for
and obtaining coverage under an NPDES
permit," if changes occur at the facility
which cause exposure of industrial
activities or materials to storm water.
The comments expressed the difficultly
of immediate compliance. EPA expects
that most facility changes can be
anticipated, therefore dischargers
should apply for and obtain NPDES
permit coverage in advance of changes
that result in exposure to industrial
activities or materials. Permitting
authorities may grant additional time,
on a case-by-case basis, for preparation
and implementation of a storm water
pollution prevention plan.
Finally, today's rule at § 122.26(g)(4)
includes the information which must be
included on the "no exposure"
certification. Authorized States, Tribes
or U.S. Territories may develop their
own form which includes this required
information, at a minimum. EPA
adopted the requirements (with
modification) from the draft "No
Exposure Certification Form" published
as an appendix to the proposed rule.
Modifications were made to the draft
form to address comments received and
to streamline the required information.
EPA included these certification
requirements in today's rule in order to
preserve its integrity. Dischargers in
areas where EPA is the permitting
authority should use the "No Exposure
Certification" form included in
Appendix 4.
3. Definition of "No Exposure"
For purposes of this section, "no
exposure" means that all industrial
materials or activities are protected by a
storm resistant shelter to prevent
exposure to rain, snow, snowmelt, and/
or runoff. Industrial materials or
activities include, but are not limited to,
material handling equipment or
activities, industrial machinery, raw
materials, intermediate products, by-
products, final products, or waste
products. Material handling activities
include the storage, loading and
unloading, transportation, or
conveyance of any raw material,
intermediate product, final product or
waste product. However, storm resistant
shelter is not required for: (1) Drums,
barrels, tanks, and similar containers
that are tightly sealed, provided those
containers are not deteriorated and do
not leak; (2) adequately maintained
vehicles used in material handling; and
(3) final products, other than products
that would be mobilized in storm water
discharge (e.g., rock salt). Each of these
three exceptions to the no exposure
definition are discussed in more detail
below.
EPA intends the term "storm resistant
shelter" to include completely roofed
and walled buildings or structures, as
well as structures with only a top cover
but no side coverings, provided material
under the structure is not otherwise
subject to any run-on and subsequent
runoff of storm water. While the Agency
intends that this provision promote
permanent "no exposure", EPA
understands that certain vehicles could
pass between buildings and, during
passage, be exposed to rain and snow.
Adequately maintained vehicles such as
trucks, automobiles, forklifts, or other
such general purpose vehicles at the
industrial site that are not industrial
machinery, and that are not leaking
contaminants or are not otherwise a
source of industrial pollutants, could be
exposed to precipitation or runoff. Such
activities alone does not prevent a
discharger from being able to certify no
exposure under this provision.
Similarly, trucks or other vehicles
awaiting maintenance at vehicle
maintenance facilities, as defined at
§ 122.26(b)(14)(viii), that are not leaking
contaminants or are not otherwise a
source of industrial pollutants, are not
considered exposed.
In addition, EPA recognizes that there
are circumstances where permanent "no
exposure" of industrial activities or
materials is not possible. Under such
conditions, materials and activities may
be sheltered with temporary covers,
such as tarps, between periods of
permanent enclosure. The final rule
does not specify every such situation.
EPA intends that permitting authorities
will address this issue on a case-by-case
basis. Permitting authorities can
determine the circumstances under
which temporary structures will or will
not meet the requirements of this
section. Until permitting authorities -
specifically determine otherwise, EPA
recommends application of the "no
exposure" exclusion for temporary
sheltering of industrial materials or
activities only during facility renovation
or construction, provided that the
temporary shelter achieves the intent of
this section. Moreover, "exposure" that
results from a leak in protective
covering would only be considered
"exposure" if not corrected prior to the
next storm water discharge event. EPA
received one comment requesting that
this allowance for temporary shelter be
limited to facility renovation or
construction directly related to the
industrial activity requiring temporary
shelter, and be scheduled to minimize
the use of temporary shelter. Another
comment suggested placing time limits
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68786 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
on the use of temporary shelter. The
commenter did not recommend a
specific time period, rather the
comment said that renovation in some .
instances may take years, and that EPA
should not allow temporary shelter over
prolonged periods. EPA agrees that the
use of temporary shelter must be related
to the renovation or construction at the
site, and be scheduled or designed to
minimize the use of temporary shelter.
Further, EPA agrees that the use of
temporary shelter should be limited in
duration, but does not intend to define
"temporary" or "prolonged period".
Many final products are intended for
outdoor use and pose little risk of storrn
water contamination, such as new cars.
Therefore, final products, except those
.that can be mobilized in storm water
discharge, can be "exposed" and still
allow the discharge to certify "no
exposure". EPA intends the term "final
products" to mean those products that
are not used in producing another
product. Any product that can be used
to make another product is considered
an "intermediate product." For
example, a facility that makes horse
trailers can store the finished trailers
outdoors as a final product. The storage
of those final products does not prevent
eligibility to claim "no exposure".
However, any facility that makes parts
for the horse trailers (e.g., metal tubing,
sheet metal, paint) is not eligible for the
"no exposure" exclusion from
permitting if those "intermediate
products" are stored outdoors (i.e.,
"exposed").
EPA received comments related to
materials in drums, barrels, tanks and
similar containers. Some comments
objected to the language in the preamble
to the proposed rule that would have
recommended that the "exposure"
determination for drums and barrels be
based on the "potential to leak." Those
comments said that all drums and
barrels have the potential to leak,
thereby making certification impossible.
They recommended allowing outdoor
storage of drums and barrels except for
those that "are leaking" at the time of
certification, Other comments suggested
allowing drums and barrels to be stored
outside only if the drums and barrels:
are empty; have secondary containment;
or there is a spill contingency plan in
place. Opposing comments suggested
that allowing outdoor exposure of
drums and barrels, based on existing
integrity and condition, is inconsistent
with the "however packaged" proposed
rule language, and also would not
satisfy the Ninth Circuit remand. The
comments point out that the former rule
was invalidated by the court in part
because it relied on the "unverified
judgment" of the light industrial facility
operator to determine the non-
applicability of the permit requirements,
and that allowing the facility operator to
determine the condition of their drums
and barrels would result in the same
flaw.
In response, EPA believes that drums
and barrels that are stored outdoors pose
little risk of storm water contamination
unless they are open, deteriorated or
leaking. The Agency has modified
today's rule accordingly. EPA intends
the term "open" to mean any container
that is not tightly sealed and "sealed" to
mean banded or otherwise secured and
without operational taps or valves.
Drums, barrels, tanks, and similar
containers may only be stored outdoors
under this conditional exclusion. The
addition of material to or withdrawing
of material from these containers while
outside is deemed "exposure". Moving
the containers while outside does not
create "exposure" provided that the
containers are not open, deteriorated or
leaking. In order to complete the "no
exposure" certification, a facility
operator must inspect all drums, barrels,
tanks or other containers stored outside
to ensure that they are not open,
deteriorated, or leaking. EPA
recommends that the discharger
designate someone at the facility to
conduct frequent inspections to verify
that the drums, barrels, tanks or other
containers remain in a condition such
that they are not open, deteriorated or
leaking. Drums, barrels, tanks or other
containers stored outside that have
valves which are used to put material in
or take material out of the container,
and that have dripped or may drip, are
considered to be "leaking" and must be
under a storm resistant shelter in order
to qualify for the no exposure exclusion.
Likewise, leaking pipes containing
contaminants exposed to storm water
are deemed "exposed." If at any time
drums, barrels, tanks or similar
containers are opened, deteriorated or
leaking, the discharger should take
immediate actions to close or replace
the container. Any resulting
unpermitted discharge would violate
the CWA. The Director, the operator of
the MS4, or the municipality may
inspect the facility to verify that all of
the applicable areas meet the "no
exposure" conditions as specified in the
rule language. In requiring submission
of the conditional "no exposure"
certification and allowing the permitting
authority and the operator of the MS4 to
inspect the facility, today's rule does not
rely on the unverified judgment of the
facility to determine that the no
exposure provision is being met.
EPA received several comments
related to trash dumpsters that are
located outside. The preamble to the
proposed rule listed dumpsters in the
same grouping as drums and barrels,
which based exposure on the "potential
to leak". Today's rule distinguishes
between dumpsters and drums/barrels.
In the Phase I Question and Answer
document (volume 1, question 52) the
Agency noted that a covered dumpster
containing waste material that is kept
outside is not considered "exposed" as
long as "the container is completely
covered and nothing can drain out holes
in the bottom, or is lost in loading onto
a garbage truck." EPA affirms this
approach today. Industrial refuse and
industrial trash that is left uncovered is
deemed "exposed."
For purposes of this provision,
particulate matter emissions from roof
stacks/vents that are regulated and in
compliance under other environmental
protection programs, such as air quality
control programs, and that do not cause
storm water contamination, are
considered "not exposed." EPA
received comments on the phrase in the
draft "no exposure" certification form
that asked whether "particulate
emissions from roof stacks/vents not
otherwise regulated, and in quantities
detectable in the storm water outflow,"
are exposed to precipitation. One
comment expressed concern that the
phrase "in quantities detectable in the
storm water outflow" implies that the
facility must conduct monitoring prior
to completing the checklist, and must
continue to monitor after receiving the
no exposure exclusion, in order to be
able to verify compliance with the no
exposure provision. Another comment
said that current measurement
technology allows detection of
pollutants at levels that may not cause
environmental harm. EPA does not
intend to require monitoring of runoff
from facilities with roof stacks/vents
prior to or after completing and
submitting the no exposure certification.
EPA has thus replaced the phrase "in
quantities detectable" with "evident" to
convey the message that emissions from
some roof stacks/vents have the
potential to contaminate storm water
discharges in quantities that are
considered significant or that cause or
contribute to a water quality standards
violation. In those instances where the
permitting authority determines that
particulate emissions from facility roof
stacks/vents are a significant contributor
of pollutants or contributing to water
quality violations, the permitting
authority may require the discharger to
apply for and obtain coverage under a
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permit. Visible deposits of residuals
(e.g., particulate matter) near roof or
side vents are considered "exposed".
Likewise, visible "track out" (i.e.,
pollutants carried on the tires of
vehicles) or windblown raw materials
are deemed "exposed."
EPA received a comment requesting
an allowance under the "no exposure"
provision for industrial facilities with
several outfalls at a site where some, but
not all of the outfalls drain non-exposed
areas. The commenter provided an
example of an industrial facility that has
5 outfalls draining different areas of the
site, where two of those outfalls drain
areas where industrial activities or
materials are not exposed to storm
water. The comment requested that the
facility in this example be allowed to
submit a "no exposure" certification in
order to be relieved of permitting
obligations for discharges from those
two outfalls.
EPA agrees, but the comment would
be implemented on an outfall-by-outfall
basis in the permitting process, not
through the "no exposure" exclusion.
The "no exposure" provision was
developed to allow exclusion from
permitting of discharges from entire
industrial facilities (except
construction), based on a claim of "no
exposure" for all areas of the facility
where industrial materials or activities
occur. Where exposure to industrial
materials or activities exist at some but
not all areas of the facility, the "no
exposure" exclusion from permitting is
not allowed because permit coverage is
still required for storm water discharges
from the exposed areas. Relief from
permit requirements for outfalls
draining non-exposed areas should be
addressed through the permit process.
in coordination with the permitting
authority. Most NPDES general permits
for storm water discharge provide
enough flexibility to allow minimal or
no requirements for non-exposed areas
at industrial facilities. If the permitting
authority determines that additional
flexibility is needed for this scenario,
the permits could be modified as
necessary.
K. Public Involvement/Public Role
The Phase IIFACA Subcommittee
discussed the appropriate role of the
public in successful implementation of
a municipal storm water program. EPA
believes that an educated and actively
involved public is essential to a
successful municipal storm water
program. An educated public increases
program compliance from residents and
businesses as they realize their
individual and collective responsibility
for protecting water resources (e.g., the
residents and businesses could be
subject to a local ordinance that
prohibits dumping used oil down storm
sewers). Finally, the program is also
more likely to receive public support
and participation when the public is
actively involved from the program's
inception and allowed to participate in
the decision making process.
In a time of limited staff and financial
resources, public volunteers offer
diverse backgrounds and expertise that
may be used to plan, develop, and
implement a program that is tailored to
local needs (e.g., participate in public
meetings and other opportunities for
input, perform lawful volunteer
monitoring, assist in program
coordination with other preexisting and
related programs, aid in the
development and distribution of
educational materials, and provide
public training activities). The public's
participation is also useful in the areas
of information dissemination/education
and reporting of violators, where large
numbers of community members can be
more effective than a few regulators.
The public can also petition the
NPDES permitting authority to require
an NPDES permit for a discharge
composed entirely of storm water that
contributes to a violation of a water
quality standard or is a significant
contributor of pollutants to waters of the
United States. In evaluating such a
petition, the NPDES permitting
authority is encouraged to consider the
set of designation criteria developed for
the evaluation of small MS4s located
outside of an urbanized area in places
with a population of at least 10,000 and
a population density of 1,000 or more.
Furthermore, any person can protect
water bodies by taking civil action
under section 505 of the CWA against
any person who is alleged to be in
violation of an effluent standard or
permit condition. If civil action is taken,
EPA encourages citizen plaintiffs to
resolve any disagreements or concerns
directly with the parties involved, either
informally or through any available
alternative dispute resolution process.
EPA recognizes that public
involvement and participation pose
challenges. It requires a substantial
initial investment of staff and financial
resources, which could be very limited.
Even with this investment, the public
might not be interested in participating.
In addition, public participation could
slow down the decision making process.
However, the benefits are numerous.
EPA encourages members of the
public to contact the NPDES permitting
authority or local MS4s operator for
information on the municipal storm
water program and ways to participate.
Such information may also be available
from local environmental, nonprofit and
industry groups.
Some commenters stressed the need
to suggest to the public that they have
a responsibility to fund the municipal
storm water program. While EPA
believes it is important that the program
be adequately funded, today's rule does
not address appropriate mechanisms or
levels for such funding.
EPA received comments expressing
concern that considerable public
involvement requirements could result
in increased litigation. EPA is not
convinced there is a correlation between
meaningful public education programs
and any increased probability of
litigation.
Finally, EPA received comments
stating that the Agency should not en
courage volunteer monitoring unless
proper procedures are followed. EPA
agrees. EPA encourages only lawful
monitoring, i.e., obtaining the necessary
approval if there is any question about
lawful access to sites. Moreover, as a
matter of good practice and to enhance
the validity and usefulness of the
results, any party, public or private,
conducting water quality monitoring is
encouraged to use appropriate quality
control procedures and approved
sampling and analytic methods.
L. Water Quality Issues
1. Water Quality Based Effluent Limits
In addition to technology based
requirements, all point source
discharges of industrial storm water are
subject to more stringent NPDES
permitting requirements when
necessary to meet water quality
standards. CWA sections 402(p)(3)(A)
and 301(b)(l)(C). For municipal separate
storm sewers, EPA or the State may
determine that other permit provisions
(e.g. one of the minimum measures) are
appropriate to protect water quality and,
for discharges to impaired waters, to
achieve reasonable further progress
toward attainment of water quality
standards pending implementation of a
TMDL. CWA section 402(p)(3)(B)(iii).
See Defenders of Wildlife, et al.
Browner, No. 98-71080 (9th cir., August
11,1999). Discharges of storm water
also must comply with applicable
antidegradation policies and
implementation methods to maintain
and protect water quality. 40 CFR
131.12. Section 122.34(a) emphasizes
this point by specifically noting that a
storm water management program.
designed to reduce the discharge of
pollutants from the storm sewer system
"to the maximum extent practicable" is
also designed to protect water quality.
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Permits issued to non-municipal
sources of storm water must include
water quality-based effluent limits
where necessary to meet water quality
standards.
Commenters challenged EPA's
interpretation of the CWA as requiring
water quality-based effluent limits for
MS4s when necessary to protect water
quality. Commenters asserted that CWA
402(p)(3)(B), which addresses permit
requirements for municipal discharges,
limits the scope of municipal program
requirements to an effective prohibition
on non-storm water discharges to a
separate storm sewer and to controls
which reduce pollutants to the
"maximum extent practicable, including
management practices, control
techniques and system design and
engineering methods." They asserted
that the final rule should clarify that
neither numeric nor narrative water
quality-based limits are appropriate or
authorized for MS4s.
EPA disagrees that section 402(p)(3)
divests permitting authorities of the
tools necessary to issue permits to meet
water quality standards. Section
402(p)(3)(B)(iii) specifically preserves
the authority for EPA or the State to
include other provisions determined
appropriate to reduce pollutants in
order to protect water quality. Defenders
of Wildlife, slip op. at 11688. Small
MS4s regulated under today's rule are
designated under CWA 402(p)(6) "to
protect water quality."
Commenters argued that water quality
standards, particularly numeric criteria,
were not designed to address storm
water discharges. The episodic nature
and magnitude of storm water events,
they argue, make it impossible to apply
the "end of pipe" compliance
assessment approach, for example, in
the development of water quality based
effluent limits.
EPA's disagrees with the Commenters
arguments about the inability of water
quality criteria to address high flow
conditions. Today's final rule does,
however, address the concern that
numeric effluent limits will necessitate
end of pipe treatment and the need to
provide a workable alternative.
Today's rule was developed under the
approach outlined in the Interim
Permitting Policy for Water Quality-
Based Effluent Limitations in Storm
Water Permits, issued on August 1,
1996. 61 FR 43761 (November 26,1996)
(the "Interim Permitting Policy"). EPA
intends to issue NPDES permits
consistent with the Interim Permitting
Policy, which provides as follows:
In response to recent questions
regarding the type of water quality-
based effluent limitations that are most
appropriate for NPDES storm water
permits, EPA is adopting an interim
permitting approach for regulating wet
weather storm water discharges. Due to
the nature of storm water discharges,
and the typical lack of information on
which to base numeric water quality-
based effluent limitations (expressed as
concentration and mass), EPA will use
an interim permitting approach for
NPDES storm water permits.
"The interim permitting approach
uses best management practices (BMPs)
in first-round storm water permits, and
expanded or better-tailored BMPs in
subsequent permits, where necessary, to
provide for the attainment of water
quality standards. In cases where
adequate information exists to develop
more specific conditions or limitations
to meet water quality standards, these
conditions or limitations are to be
incorporated into storm water permits,
as necessary and appropriate. This
interim permitting approach is not
intended to affect those storm water
permits that already include
appropriately derived numeric water
quality-based effluent limitations. Since
the interim permitting approach only
addresses water quality-based effluent
limitations, it also does not affect
technology-based effluent limitations,
such as those based on effluent
limitations guidelines or developed
using best professional judgment, that
are incorporated into storm water
permits.
"Each storm water permit should
include a coordinated and cost-effective
monitoring program to gather necessary
information to determine the extent to
which the permit provides for
attainment of applicable water quality
standards and to determine the
appropriate conditions or limitations of
subsequent permits. Such a monitoring
program may include ambient
monitoring, receiving water assessment,
discharge monitoring (as needed), or a
combination of monitoring procedures
designed to gather necessary
information.
"This interim permitting approach
applies only to EPA; however, EPA also
encourages authorized States and Tribes
to adopt similar policies for storm water
permits. This interim permitting
approach provides time, where
necessary, to more fully assess the range
of issues and possible options for the
control of storm water discharges for the
protection of water quality. This interim
permitting approach may be modified as
a result of the ongoing Urban Wet
Weather Flows Federal Advisory
Committee policy dialogue on this
subject."
One commenter challenged the
Interim Permitting Policy on a
procedural basis, arguing that it was
published without opportunity for
public notice and comment. In
response, EPA notes that the Policy was
included verbatim and made available
for public comment in the proposal to
today's final rule. Prior to that proposal,
the Agency defended the application of
the Policy on a case-by-case basis in
individual permit proceedings.
Moreover, the essential elements of the
Policy—that narrative effluent
limitations are the most appropriate
form of effluent limitations for storm
water dischargers from municipal
sources—was inherent in § 122.34(a) of
the proposed rule, and was the subject
of extensive public comment. In any
event, the Policy does not constitute a
binding obligation. It is policy, not
regulation.
Consistent with the recognition of
data needs underlying the Policy, EPA
will evaluate the small MS4 storm water
regulations after the second round of
permit issuance. Section 122.34(e)(2) of
today's rule expressly provides that for
the interim ten-year period, "EPA
strongly recommends that until the
evaluation of the storm water program
in § 122.37, no additional requirements
beyond the minimum control measures
be imposed on regulated small MS4s
without the agreement of the operator of
the affected small MS4, except where an
approved TMDL or equivalent analysis
provides adequate information to
develop more specific measures to
protect water quality." This approach
addresses the concern for protecting
water resources from the threat posed by
storm water discharges with the
important qualification that there must
be adequate information on the
watershed or a specific site as a basis for
requiring tailored storm water controls
beyond the minimum control measures.
As indicated, the Interim Permitting
Policy has several important
limitations—it does not apply to
technology-based controls or to sources
that already have numeric end of pipe
effluent limitations. EPA encourages
authorized States and Tribes to adopt
policies similar to the Interim
Permitting Policy when developing
storm water discharge programs. For a
discussion of appropriate monitoring
activities, see Section H.S.d., Evaluation
and Assessment.
Where a water quality analysis
indicates there is a need and basis for
deriving water quality-based effluent
limits in NPDES permits for storm water
discharges regulated under today's rule,
EPA believes that most of these cases
would be satisfied by narrative effluent
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limitations that require the
implementation of BMPs. NPDES permit
limits will in most cases continue to be
based on the specific approach outlined •
in today's rule for the implementation of
BMPs as the most appropriate form of
effluent limitation to satisfy technology
and water quality-based requirements.
See § 122.34(a). For storm water
management plans with existing BMPs,
this may require further tailoring of
BMPs to address the pollutant(s) of
concern, the nature of the discharge and
the receiving water. If the permitting
authority determines that, through
implementation of appropriate BMPs
required by the NPDES storm water
permit, the discharge has the necessary
controls to provide for attainment of
water quality standards, additional
controls are not needed in the permit.
Conversely, if a discharger (MS4,
industrial or construction) fails to adopt
and implement adequate BMPs, the
permittee and/or the permitting
authority should consider a different
mix of BMPs or more specific
conditions to ensure water quality
protection.
Some commenters observed that there
was no evidence from the experience of
storm water dischargers regulated under
the existing NPDES storm water
program, or from studies or reports that
allegedly support EPA's position, that
implementation of BMPs to satisfy the
six minimum control measures would
meet applicable water quality standards
for a regulated small MS4. In response,
EPA acknowledges that the six
minimum measures are intended to
implement the statutory requirement to
control discharges to the maximum
extent practicable, and they may not
result in the attainment of water quality
standards in all cases. The control
measures do, however, focus on and
address well-documented threats to
water quality associated with storm
water discharges. Based on the
collective expertise of the FACA Sub-
committee, EPA believes that
implementation of the six minimum
measures will, for most regulated small
MS4s, be adequate to protect water
quality, and for other regulated small
MS4s will substantially reduce the
adverse impacts of their discharges on
water quality.
Some commenters asserted that
analyses of existing water quality
criteria suggest that numeric criteria for
aquatic life may be overprotective if
applied to storm water discharges.
These comments maintained that an
approach that prohibits exceedance of
applicable water quality criteria is
unworkable. Various commenters
recommended wet weather specific
criteria, variances to the criteria during
wet weather events, and seasonal
designated uses. Other commenters
noted that water quality-based effluent
limits in NPDES permits have
traditionally been developed based on
dry weather flow conditions (e.g.,
assuming critical low-flow conditions in
the receiving water to ensure protection
of aquatic life and human health). Wet
weather discharges, however, typically
occur under high-flow conditions in the
receiving water. Assumptions regarding
mass balance equations and size of
mixing zones may also not be pertinent
during wet weather.
EPA acknowledges the need to devise
a regulatory program that is both
flexible enough to accommodate the
episodic nature, variability and volume
of wet weather discharges and
prescriptive enough to ensure protection
of the water resource. EPA believes that
wet weather discharges can be
adequately addressed in the existing
regulations through refining designated
uses and assigning criteria that are
tailored to the level of water quality
protection described by the refined
designated use.
EPA believes that lack of precision in
assigning designated uses and
corresponding criteria by States and
Tribes, in many cases may result in
application of water quality criteria that
may not appropriately match the
intended condition of the water body.
States and Tribes have frequently
designated uses without regard to site-
specific wet weather conditions.
Because certain uses (swimming, for
example) might not exist during high-
intensity storm events or in the winter,
States may factor such climatic
conditions and seasonal uses into their
use designations with appropriate
analyses. This would acknowledge that
a lower level of control, at lower
compliance cost, would be appropriate
to protect that use. Before modifying
any designated use, however, States
would need to evaluate the effect of less
stringent water quality criteria on
protecting other uses, including any
threatened or endangered species,
drinking water supplies and
downstream uses. EPA will further
evaluate these issues in the context of
the Water Quality Standards Regulation,
Advance Notice of Proposed Rule
Making (ANPRM), 63 FR, 36742, July 7,
1998.
One of the major themes presented by
EPA in the ANPRM is that refinement
in use designations and tailoring of
water quality criteria to match refined
use designations is an important future
direction of the water quality standards
program. In assigning criteria to protect
general use classifications, a State or
Tribe must ensure that the criteria are
sufficiently protective to safeguard the
full range of waters of the State, i.e.,
criteria would be based on the most
sensitive use. This approach has been
disputed, especially for aquatic life
uses, where evidence suggests that the
general use criteria will require controls
more stringent than needed to protect
the existing or potential aquatic life
community for a specific water body.
EPA recognizes that there is a growing
need to more precisely tailor use
descriptions and criteria to match site-
specific conditions, ensuring that uses
and criteria provide an appropriate level
of protection, which, to the extent
possible, are not overprotective. EPA is
engaged in an ongoing evaluation of its
regulations in this area through the
ANPRM effort. At the same time, EPA
continues to encourage States and
Tribes to review the applicability of the
designated uses and associated criteria
using existing provisions in the water
quality standards regulation.
2. Total Maximum Daily Loads and
Analysis To Determine the Need for
Water Quality-Based Limitations
The development and implementation
of total maximum daily loads (TMDLs)
provide a link between water quality
standards and effluent limitations. CWA
section 303(d) requires States to develop
TMDLs to provide more stringent water
quality-based controls when technology-
based controls are inadequate to achieve
applicable water quality standards. A
TMDL is the sum of the individual
wasteload allocations for point sources
and load allocations for nonpoint
sources, with consideration for natural
background conditions. A TMDL
quantifies the maximum allowable
loading of a pollutant to a water body
and allocates this maximum load to
contributing point and nonpoint sources
so that water quality criteria will not be
exceeded and designated uses will be
protected. A TMDL also includes a
margin of safety to account for
uncertainty about the relationship
between pollutant loads and water
quality.
Today's final rule refers to TMDLs in
several provisions. For the purpose of
today's rule, EPA relies on the
component of the TMDL that evaluates
existing conditions and allocates loads.
For discharges to waters that are not
impaired and for which a TMDL has not
been developed, today's rule also refers
to an "equivalent analysis." The
discussion that follows uses the term
"TMDL" for both.
Under revised § 122.26(a)(9Ki)(C), the
permitting authority may designate
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storm water discharges that require
NPDES permits based on TMDLs that
address the pollutants of concern. For
storm water discharges associated with
small construction activity,
§ 122.26(b)(15)(i)(B) provides a waiver
provision where it may be determined
that storm water controls are not needed
based on TMDLs that address sediment
and any other pollutants of concern.
The NPDES permitting authority may
waive requirements under the program
for certain small MS4s within urbanized
areas serving less than 1,000 persons
provided that, if the small MS4
discharges any pollutant that has been
identified as a cause of impairment of a
water body into which it discharges, the
discharge is in compliance with a
wasteload allocation in a TMDL for the
pollutant of concern. The permitting
authority may also waive requirements
for MS4s in urbanized areas serving
between 1,000 and 10,000 persons, if
the permitting authority determines that
storm water controls are not needed, as
provided in § 123.35(d)(2). See
§122.32(c).
Under CWA section 303(d), States
identify which of their water bodies
need TMDLs and rank them in order of
priority. Generally, once a TMDL has
been completed for one or more
pollutants in a water body, a wasteload
allocation for each point source
discharging the pollutant(s) is
implemented as an enforceable
condition in the NPDES permit.
Regulated small MS4s are essentially
like other point source discharges for
purposes of the TMDL process.
A TMDL and the resulting wasteload
allocations for pollutant(s) of concern in
a water body may not be available
because the water body is not on the
State's 303(d) list, the TMDL has not yet
been completed, or the TMDL did not
include specific pollutants of concern.
In these cases, the permitting authority
must determine whether point sources
discharge pollutant(s) in amounts that
cause, have the reasonable potential to
cause, or contribute to excursions above
State water quality standards, including
narrative water quality criteria. This so-
called "reasonable potential" analysis is
intended to determine whether and for
what pollutants water quality based
effluent limits are required. The analysis
is, in effect, a substitute for a similar
determination that would be made as
part of a TMDL, where necessary. When
"reasonable potential" exists,
regulations at § 122.44(d) require a-
water quality-based effluent limit for the
pollutant(s) of concern in NPDES
permits. The water quality-based
effluent limits may be narrative
requirements to implement BMPs or,
where necessary, may be numeric
pollutant effluent limitations.
Commenters, generally from the
regulated community, objected that, due
to references to the need to develop a
program "to protect water quality" and
to additional NPDES permit
requirements beyond the minimum
control measures based on TMDLs or
their equivalent, regulated small MS4s
will be subject to uncertain permit
limitations beyond the six minimum
control measures. Commenters also
asserted that through the imposition of
a wasteload allocation under a TMDL in
impaired water bodies, there is a
likelihood that unattainable, yet
enforceable narrative and numeric
standards will be imposed on regulated
small MS4s.
As is discussed in the preceding
section, NPDES permits must include
any more stringent limitations when
necessary to meet water quality
standards. However, even if a regulated
small MS4 is subject to water quality
based effluent limits, such limits may be
in the form of narrative effluent
limitations that require the
implementation of BMPs. As discussed
earlier, EPA has adopted the Interim
Permitting Policy and incorporated it in
the development of today's rule to
recognize the appropriateness of BMP-
based limits developed on a case-by-
case basis.
EPA formed a Federal Advisory
Committee to provide advice to EPA on
identifying water quality-limited water
bodies, establishing TMDLs for them as
appropriate, and developing appropriate
watershed protection programs for these
impaired waters in accordance with
C\VA section 303(d). Operating under
the auspices of the National Advisory
Council for Environmental Policy and
Technology (NACEPT), the committee
produced its Report of the Federal
Advisory Committee on the Total
Maximum Daily Load (TMDL} Program
(July 1998). EPA recently published a
proposed rule to implement the Report's
recommendations (64 FR 46012, August
23, 1999).
3. Anti-Backsliding
In general, the term "anti-
backsliding" refers to statutory
provisions at CWA sections 303(d)(4)
and 402 (o) and regulatory provisions at
40 CFR 122.44(1). These provisions
prohibit the renewal, reissuance, or
modification of an existing NPDES
permit that contain effluent limits,
permit terms, limitations and
conditions, or standards that are less
stringent than those established in the
previous permit. There are also
exceptions to this prohibition known as
"antibacksliding exceptions."
The issue of backsliding from prior
permit limits, standards, or conditions
is not expected to initially apply to most
storm water dischargers designated
under today's proposal because they
generally have not been previously
authorized by an NPDES permit.
However, the backsliding prohibition
would apply if a storm water discharge
was previously covered under another
NPDES permit. Also, the backsliding
prohibition could apply when an
NPDES storm water permit is reissued,
renewed, or modified. In most cases,
however, EPA does not believe that
these provisions would restrict revisions
to storm water NPDES permits.
One commenter questioned whether,
if BMPs implemented by a regulated
small MS4 operator fail to produce
results in removal of pollutants and the
permittee attempts to substitute a more
effective BMP, the small MS4 operator
could be accused of violating the anti-
backsliding provisions and also be
exposed to citizen lawsuits. In response,
EPA notes that in such circumstances
the MS4's permit has not changed and,
therefore, the prohibition against
backsliding is not applicable. Further,
any change in the mix of BMPs that was
intended to be more effective at
controlling pollutants would not be
considered backsliding, even if it did
not include all of the previously
implemented BMPs.
4. Water Quality-Based Waivers and
Designations
Several sections of today's final rule
refer to water quality standards in
identifying those storm water discharges
that are and are not required to be
permitted under today's rule. As noted
in § 122.30 of today's rule, CWA section
402(p)(6) requires the designation of
municipal storm water sources that
need to be regulated to protect water
quality and the establishment of a
comprehensive storm water program to
regulate these sources. Requirements
applicable to certain municipal sources
may be waived based on the absence of
demonstrable water quality impacts.
Section 122.32(c). The section 402(p)(6)
mandate to protect water quality also
provides the basis for regulating
discharges associated with small
construction. See also §122.26(b)(15)(i).
Further, today's rule carries forward the
existing authority for the permitting
authority to designate sources of storm
water discharges based upon water
quality considerations. Section
122.26(a)(9)(i)(C) and (D).
As is discussed above in sections
II.H.2.e (for small MS4s) and ILI.l.b.ii
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68791
(for small construction), the
requirements of today's rule may be
waived based on wasteload allocations
that are part of "total maximum daily
loads" (TMDLs) that address the
pollutants of concern or, in the case of
small construction and municipalities
serving between 1,000 and 10,000
persons, the equivalents of TMDLs. One
commenter stated that waivers would
allow exemptions to the technology
based requirements and would thus be
inconsistent with the two-fold approach
of the CWA (a technology based
minimum and a water quality based
overlay). EPA acknowledges that
\vaivers are not allowed for other
technology-based requirements under
the CWA. A more flexible approach is
allowed, however, for sources
designated for regulation under
402(p)(6) to protect water quality. For
such sources EPA may allow a waiver
where it is demonstrated that an
individual source does not present the
threat to water quality that was the basis
for EPA's designation.
III. Cost-Benefit Analysis
EPA has determined that the range of
the rule's benefits exceeds the range of
regulatory costs. The estimated rule
costs range from $847.6 million to
$981.3 million annually with
corresponding estimated monetized
annual benefits which range from
S671.5 million to SI.628 billion,
expected to exceed costs.
The rule's cost and benefit estimates
are based on an annual comparison of
costs and benefits for a representative
year (1998) in which the rule is
implemented. This differs from the
approach used for the proposed rule
which projected cost and benefits over
three permit terms. EPA has chosen to
use the current approach because it
determined that the ratio of annual
benefits and costs would not change
significantly over time. Moreover,
because there is not an initial outlay of
capital costs with benefits accruing in
the future (i.e., benefits and costs are
almost immediately at a steady state), it
is not necessary to discount costs in
order to account for a time differential.
EPA developed detailed estimates of
the costs and benefits of complying with
each of the incremental requirements
imposed by the rule. The Agency used
two approaches, a national water quality
model and national water quality
assessment, to estimate the potential
benefits of the rule. Both approaches
show that the benefits are likely to
exceed costs.
These estimates, including
descriptions of the methodology and
assumptions used, are described in
detail in the Economic Analysis of the
Final Phase II Rule, which is included
in the record of this rule making.
Exhibit 3 summarizes costs and benefits
associated with the basic elements of
today's rule.
EXHIBIT 3.—COMPARISON OF ANNUAL COMPLIANCE COST AND BENEFIT ESTIMATES 1
Monetized benefits
National water
quality model
(millions of 1998
dollars)
National water
quality assess-
ment (millions of
1998 dollars)
Municipal Minimum Measures .
Controls for Construction Sites
$131.0-3410.2
$540.5-$686.0
Total Annual Benefits $1,628.5
$671.5-$1,096.2
Costs
Municipal Minimum Measures
Controls/Waivers for Construction Sites
Federal/State Administrative Costs
Total Annual Costs
Millions of 1998 dollars2
$297 3
$545 0-$678 7
$5 3
$847.6-$981.31
1 National level benefits are not inclusive of all categories of benefits that can be expected to result from the regulation.
2Total may not add due to rounding.
A. Costs
1. Municipal Costs
Initially, to determine municipal costs
for the proposed rule, EPA used
anticipated expenditure data included
in permit applications from a sample of
21 Phase I MS4s. Certain commenters
criticized the Agency for using
anticipated expenditures because they
could be significantly different from the
actual expenditures. These commenters
suggested that the Agency use the actual
cost incurred by the Phase I MS4s.
Other comments stated that because the
Phase I MS4s, in general, are large
municipalities, they may not be
representative of the Phase II MS4s for
estimating regulatory costs. Finally, one
commenter noted that the sample of 21
municipalities used to project cost was
relatively small.
To address the concerns of the
commenters, EPA utilized a National
Association of Flood and Stormwater
Management Agencies (NAFSMA)
survey of the Phase II community to
obtain incremental cost estimates for
Phase II municipalities. Using the list of
potential Phase II designees published
in the Federal Register (63 FR 1616),
NAFSMA contacted more than 1,600
jurisdictions. The goal of the survey was
to solicit information from those
communities about the proposed Phase
II NPDES storm water program. Several
of the survey questions corresponded
directly to the minimum measures
required by the Phase II rule. One
hundred twenty-one surveys were
returned to NAFSMA and were used to
develop municipal costs.
Using the NAFSMA information, EPA
estimated average annual per household
program costs for automatically
designated municipalities. EPA also
estimated an average annual per
household administrative cost for
municipalities to address application,
record keeping, and reporting
requirements of the Rule. The total
average per household cost of the rule
is expected to $9.16 per household.
To determine potential national level
costs for municipalities, EPA multiplied
the number of households (32.5 million)
by the per household cost ($9.16). EPA
estimates the annual cost of the Phase
II municipal program at $298 million.
As an alternative method, and point
of comparison, to the NAFSMA-based
approach, EPA reviewed actual
expenditures reported from 35 Phase I
MS4s. The Agency targeted these 35
Phase I MS4s because they had
participated in the NPDES program for
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68792 Federal Register / Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
nearly one permit term, were smaller in
size and had detailed data reflecting
their actual program implementation
costs. Of the 35 MS4s, appropriate cost
data was only available for 26 of those
MS4s. EPA analyzed the expenditure
data and identified the relevant
expenditures, excluding costs presented
in the annual reports unrelated to the
requirements of the Rule. The cost range
and annual per household program
costs of $9.08 are similar to those found
using the NAFSMA survey data.
2. Construction Costs
In order to estimate the rule's
construction-related cost on a national
level (the soil and erosion controls
(SEC) requirements of the rule and the
potential impacts of the post-
construction municipal measure on
construction), EPA estimated a per site
cost for sites of one, three, and five acres
and multiplied these costs by the total
number of estimated Phase II
construction starts across these size
categories.
To estimate the percentage of starts
subject to the soil and erosion control
requirements between 1 and 5 acres,
with respect to each category of building
permits (residential, commercial, etc.),
EPA initially used data from Prince
George's County (PGC), Maryland, and
applied these percentages to national
totals. In the proposal, EPA recognized
that the PGC data may not be
representative of the entire country and
requested data that could be used to
develop better estimates of the number
of construction sites between 1 and 5
acres. EPA did not receive any
substantiated national data from
commenters.
In view of the unavailability of
national data from commenters, EPA
made extensive efforts to collect
construction site data around the
country. The Agency contacted more
than 75 municipalities. EPA determined
that 14 of the contacted municipalities
had useable construction site data.
Using data from these 14 municipalities,
EPA developed an estimate of the
percentage of construction starts on one
to five acres. EPA then multiplied this
percentage by the number of building
permits issued nationwide to determine
the total number of construction starts
occurring on one to five acres. Finally,
to isolate the number of construction
starts incrementally regulated by Phase
II, EPA subtracted the number of
activities regulated under equivalent
programs (e.g., areas covered by the
Coastal Zone Act Reauthorization
Amendments of 1990, and areas covered
by equivalent State level soil and
erosion control requirements).
Ultimately, EPA estimated that 110,223
construction starts would be
incrementally covered by the rule
annually.
EPA then used standard cost
estimates from Building Construction
Cost Data and Site Work Landscape
Cost Data (R.S. Means, 1997a and
1997b) to estimate construction BMP
costs for 27 model sites in a variety of
typical site conditions across the United
States. The model sites included three
different site sizes (one, three and five
acres), three slope variations (3%, 7%,
and 12%), and three soil erosivity
conditions (low, medium, and high).
EPA chose BMP combinations
appropriate to the model site
conditions. Based on the assumption
that any combination of site factors is
equally likely to occur in a given site,
EPA developed average cost of sediment
and erosion control for all model sites.
EPA estimated that, on average, BMPs
for a 1 acre site will cost SI,206, for a
3 acre site $4,598 and for a 5 acre site
$8,709.
EPA then estimated administrative
costs per construction site for the
following elements required under the
rule: Submittal of a notice of intent for
permit coverage; notification to
municipalities; development of a storm
water pollution prevention plan; record
retention; and submittal of a notice of
termination. EPA estimated the average
total administrative cost per site to be
$937.
EPA also considered the cost
implications of NPDES permit
authorities waiving the applicability of
requirements to storm water discharges
from small construction sites based on
two different criteria involving water
quality impact and low rainfall. EPA
received comments stating that a waiver
would require a significant investment
in training or acquisition of a
consultant. Based on comments
received, EPA eliminated one of the
waiver conditions involving low soil
loss threshold because it necessitated
use of the Revised Universal Soil Loss
Equation which could require extensive
technical expertise.
Based on the opinions of construction
industry experts, EPA estimates that 15
percent of the construction sites that
would otherwise be covered by today's
rule will be eligible to receive waivers.
Therefore, the Agency has excluded 15
percent of the construction sites when
deriving costs of sediment and erosion
control. The average cost for sites to
qualify for the waiver is expected to be
$34 per site. The construction cost
analysis for the proposed rule did not
include any costs for the preparation
and submission of waiver applications
because EPA believed those costs would
be negligible. However, in response to
public comments, EPA has estimated
these potential costs.
EPA has also estimated the potential
costs for construction site operators to
implement the post-construction
minimum measure. These are costs that
may be incurred by construction site
operators if the MS4 chooses to meet the
post-construction minimum measure by
requiring on-site structural, site-by-site
control of post-construction runoff.
Municipalities may select from an array
of structural and non-structural options
in implementing this measure, so the
potential costs to construction operators
is uncertain. Nonetheless, EPA
developed average annual BMP costs for
sites of one, three, five and seven acres.
EPA's analysis accounted for varying
levels of imperviousness that
characterize residential, commercial,
and institutional land uses. Nationwide,
these costs are expected to range from
$44 million to $178 million annually.
Finally, to establish national
incremental annual costs for Phase II
construction starts, EPA multiplied the
total costs of compliance for the chosen
site size categories by the total number
of Phase II construction starts and added
post-construction costs. EPA estimates
the annual compliance cost to range
from $545 million to $678.7 million.
B. Quantitative Benefits
In the Economic Analysis for the
proposed rule, a "top-down" approach
was used to estimate economic benefits.
Under this approach, the combined
economic benefits for wet weather
programs were estimated first, and then
were divided among various water
programs on the basis of expert opinion.
As a result, the benefits estimates for an
individual program were rather
uncertain. Moreover, this approach was
inconsistent with the approach used to
estimate the cost of the proposed storm
water rule, which was developed using
municipal-based and cost-based data to
develop "bottom-up" costs. Therefore,
EPA decided to use a "bottom-up"
approach for estimating benefits of the
Phase II rule. To adequately reflect the
quantifiable benefits of the rule, EPA
used two different methods: (1) National
Water Quality Model and (2) National
Water Quality Assessment.
To monetize benefits in both
approaches, the Agency applied Carson
and Mitchell's (1993) estimates of
household willingness-to-pay (WTP) for
water quality improvement to estimates
of waters impaired by storm water
discharges. Carson and Mitchell's 1993
study reports the results of their 1983
national survey of WTP for incremental
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68793
improvements in fresh water quality.
Carson and Mitchell estimate the WTP
for three minimum levels of fresh water
quality: boatable, fishable, and sizable.
EPA adjusted the WTP amounts to
account for inflation, growth in real per
capita income, and increased attitudes
towards pollution control. The adjusted
WTP amounts for improvements in
fresh water quality are $210 for
boatable, S158 for fishable, and $177 for
sizable. A brief summary of the national
water quality model and national water
quality assessment approaches follow.
1. National Water Quality Model
One approach EPA used to estimate
the benefits of the Phase II municipal
and construction site controls was the
National Water Pollution Control
Assessment Model (NWPCAM).
NWPCAM estimates benefits of the
storm water program at the national
level, including the impact on small
streams. This model estimates water
quality and the resultant use support for
the 632,000 miles of rivers and streams
in the USEPA Reach File Version 1
(RFl), which covers the continental
United States. The model analyzes
water quality changes by stream reach.
The parameters modeled in the
NWPCAM are biological oxygen
demand (BOD), total suspended solids
(TSS), dissolved oxygen (DO), and fecal
coliforms (FC).
The model projects changes in water
quality due to the Phase II municipal
and construction site controls. To
calculate the economic benefits of
change in water quality, the number of
households in the proximity of the
stream reach are determined, by
overlaying the model results on the •
1990 Census of Populated Places and
Minor Civil Divisions, and updating the
population to 1998. Economic benefits
are calculated using the Carson and
Mitchell WTP values. The benefits are
separately estimated for local and non-
local waters on the basis of WTP values
and proximity to water quality changes.
The value of the change in use
support for local waters is greater than
the value of the non-local waters
because of the opportunity to use local
waters by the local population. This
model assumes that if improvement
occurs in waters that are not close to
population centers the economic value
is lower. Therefore, benefits are
estimated for local and non-local waters
separately. This assumption is based on
Carson and Mitchell's survey which
asked respondents to apportion each of
their stated WTP values between
achieving the water quality goals in
their own State and achieving those
goals in the nation as a whole. On
average, respondents allocated 67% of
their values to achieving in-State water
quality goals and the remainder to the
nation as a whole. Carson and Mitchell
argue that for valuing local water quality
changes 67% is a reasonable upper
bound for the local multiplier and 33%
for the non-local water quality changes.
For the purposes of this analysis, the
locality is defined as urban sites and
associated populations linked into the
NWPCAM framework. Using this
methodology, the total monetized
benefits of Phase II control of urban and
construction site runoff is estimated to
be $1.628 billion per year. The local and
non-local benefits due to Phase II
controls are presented in Exhibit 4.
EXHIBIT 4.—LOCAL AND NON-LOCAL BENEFITS ESTIMATES DUE TO PHASE II CONTROLS NATIONAL WATER QUALITY
MODEL ESTIMATE
Use support
Swimming, Fishing, and Boating
Fishing and Boating
Boating
Total
Local benefits
($million/yr)
306 20
395 10
700 10
1401.40
Non-local bene-
fits1
($million/yr)
60 60
51 90
114 60
227.10
Total benefits
($million/yr)
366 80
447 OQ
814 70
169850
1 To estimate non-local willingness to pay per household, the 33% of willingness is multiplied by the fraction of previously impaired national wa-
ters (in each use category) that attain the beneficial use as a result of the Phase II rule, To estimate the aggregate non-local benefits, non-local
willingness to pay is multiplied with the total number oi households in the US.
While the numbers of miles that are
estimated to change their use support
are small, the benefits estimates are
quite significant. This is because urban
runoff and, to a large extent,
construction activity occurs where the
people actually reside and the water
quality changes mostly occur close to
these population centers. NWPCAM
indicates that changes in pollution loads
have the most effect immediately
downstream of pollution changes. As a
result, the aggregate WTP is large
because large numbers of households in
these population centers are associated
with the local waters that reflect
improvement in designated use support.
2. National Water Quality Assessment
EPA also estimated benefits of the
Phase II Storm Water program using the
1998 National Water Quality Inventory
(305(b)) Report to Congress, rather than
the NWPCAM as a basis for estimating
impairment addressed by the rule. The
Water Quality Assessment method
separately estimates benefits associated
with improvements to fresh water,
marine water and construction site
controls, and then aggregates these
separate categories into an estimate of
total annual benefits.
a. Municipal Measures
/. FresA Waters Benefits
In order to develop estimates for the
potential value of the municipal
measures (except storm water runoff
controls for construction sites), EPA
applied Carson & Mitchell WTP values
to estimated existing and projected
future fresh water impairment. Carson &
Mitchell did not evaluate marine waters,
so only fresh water values were
available from their research. Even
though the Carson and Mitchell
estimates apply to all fresh water, it is
not clear how these values would be
apportioned among rivers, lakes, and
the Great Lakes. The 305(b) data
indicate that lakes are the most
impaired by urban runoff/storm sewers,
followed closely by the Great Lakes, and
then rivers. Therefore, EPA applied the
WTP values to the categories separately
and assumed that the higher resulting
value for lakes represents the high end
of the range (i.e., assuming that lake
impairment is more indicative of
national fresh water impairment) and
that the lower resulting value for
impaired rivers represents the low end
of a value range for all fresh waters (i.e.,
assuming that river impairment is more
indicative of national fresh water
impairment). In addition, EPA estimated
that the post-construction runoff
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68794 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
requirements of the municipal program
might result in benefits of at least S16.8
million annually from avoided future
runoff. The post-construction estimate
significantly underestimates potential
program benefits because it does not
account for avoided hydrologic changes
and resulting water quality impairment
associated with increases in
imperviousness from development and
redevelopment. Summing the benefits
across the water quality use support
levels yields an estimate of benefits
ranging from approximately $121.9
million to $378.2 million per year.
ii. Marine Waters Benefits
In addition to the fresh water benefits
captured by the Carson and Mitchell
study, EPA anticipates benefits as a
result of improvements to marine
waters. Sufficient methods have not
been developed to quantify national-
level benefits for commercial or
recreational fishing. EPA used beach
closure data and visitation estimates
from its Beach Watch Program to
estimate potential reductions in marine
swimming visits due to storm water
runoff contamination events in 1997.
The estimated 86,100 trips that did not
occur because of beach closures in
coastal Phase II communities is a lower
bound because it represents only those
beaches that report both closures and
visitation data. EPA estimates potential
swimming benefits from the rule to be
at least $2.1 million annually.
EPA developed an analysis of
potential benefits associated with
avoided health impacts from exposure
to contaminants in storm sewer effluent.
Based on a study of incremental
illnesses found among people who
swam within one yard of storm drains
in Santa Monica Bay, EPA estimated a
range of incremental illnesses (Haile et
al., 1996). Depending on assumptions
made about number of exposures to
contaminants and contaminant
concentrations, benefits ranged from
$7.0 million to $29.9 million annually.
b. Construction Benefits
The major pollutant resulting from
construction activities is sediment.
However, in addition to sediment,
construction activities also yield
pollutants such as pesticides, petroleum
products, and solvents. Because
circumstances will vary considerably
from site to site, data is not available
with which to develop estimates of
benefits for each site and aggregate to
obtain a national-level estimate.
In the proposed rule, EPA estimated
the combined benefits of all wet weather
programs, and then used expert
opinions to allocate them to different
individual programs. To eliminate the
possible overlap between the benefits of
the soil and erosion control
requirements, municipal measures, and
other wet weather storm water
programs, EPA chose to use an approach
in today's final rule that directly
estimates the benefits of soil and erosion
requirements.
A survey of North Carolina residents
(Paterson et al., 1993) indicated that
households are wiling to pay for
erosion and sediment controls similar to
those in today's rule. Based on income
and other indicators, the values derived
from the study are expected to be
similar to values held in the rest of the
country. Using the mean value of the
willingness to pay of $25 per household,
EPA projects annual benefits of the soil
and erosion requirements to range from
$540.5-3686 million.
c. Summary of Benefits From the
National Water Quality Assessment
Total benefits from municipal
measures and construction site controls
are expected to range from $671.5
million to $1.1 billion per year,
including benefits of approximately
$13..7 million per year associated with
small stream improvements. A summary
of the potential benefits is presented in
Exhibit 5.
As shown in Exhibit 5, it was not
possible to monetize all categories of
benefits using the WTP estimates. In
particular, benefits for improving
marine water quality such as fishing and
passive use benefits are not included in
the values used to estimate the potential
benefits of the municipal minimum
measures (excluding construction sites
controls), and they are not estimated
separately, because information is not
currently available.
EXHIBIT 5.—POTENTIAL ANNUAL BENEFITS OF THE PHASE II STORM WATER RULE NATIONAL WATER QUALITY
ASSESSMENT ESTIMATE
Benefit category
Annual WTP
Municipal Minimum Measures1
Fresh Water Use and Passive Use2
Marine Recreational Swimming
Human Health (Marine Waters)
Other Marine Use and Passive Use
$121.9-$378.2
$2 1
$7 0-$29 9
(•*")
Erosion and Sediment Controls for Construction Sites
Fresh Water and Marine Use and Passive Use 3
$540.5-$686
Total Phase II Program
Total Use & Passive Use (Fresh Water and Marine)
>$671.5->$1,096.2
+= positive benefits expected but not monetized.
11ncludes water quality benefit of municipal programs, based on 80% effectiveness of municipal programs.
2 Based on research by Carson and Mitchell (1993). Fresh water value only. Does not include commercial fishery, navigation, or diversionary
(e.g. municipal drinking water cost savings or risk reductions) benefits. May not fully capture human health risk reduction or ecological values.
3 Based on research by Paterson et al (1993). Although the survey's description of the benefits of reducing soil erosion from construction sites
included reduced dredging, avoided flooding, and water storage capacity benefits, these benefit categories may not be fully incorporated in the
WTP values. Small streams may account for over 2% of total benefits.
C. Qualitative Benefits
There are additional benefits to storm
water control that cannot be quantified
or monetized. Thus, the current estimate
of monetized benefits may understate
the true value of storm water controls
because it omits many ways in which
society is likely to benefit from reduced
storm water pollution, such as improved
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Federal Register/Vol. 64. No. 235/Wednesday, December 8, 1999/Rules and Regulations 68795
aesthetic quality of waters, benefits to
wildlife and to threatened and
endangered species, cultural values, and
biodiversity benefits.
A benefit that EPA did not monetize
completely is the flood control benefits
attributable to municipal storm water
controls reducing downstream flooding,
although flood control benefits
associated with sediment and erosion
control are already reflected to some
extent in the construction benefits.
Similarly, the Agency could not value
the benefits from increased property
value due to storm water controls
reflected in the rule, even though a
commenter suggested inclusion of these
benefits in the estimates.
Moreover, while a number of
commenters requested that EPA include
ecological benefits, the Agency was not
able to fully monetize these benefits.
Urbanization usually increases the
amount of sediment, nutrients, metals
and other pollutants associated with
land disturbance and development.
Development usually not only results in
a dramatic increase in the volume of
water runoff, but also in a substantial
decrease in that water's quality due to
stream scour, runoff and dispersion of
toxic pollutants, and oversiltation.
These kinds of secondary benefits could
not be fully reflected in the monetized
benefits. EPA was able to only monetize
the aquatic life support benefits for
waters assumed to be impaired. Thus,
only the aquatic life support benefits
attributable to municipal controls,
reflected through human satisfaction,
are taken into account.
Reduced nutrient level is another
benefit of the storm water control which
is not fully captured by the economic
analysis. High nutrient levels often lead
to eutrophication of the aquatic system.
The quality change in ecological sources
as the result of storm water controls to
reduce pollutants is not fully reflected
in the present benefits.
D, National Economic Impact
Finally, the Agency determined that
the rule will have minimal impacts on
the economy or employment. This is
because the final rule regulates small
MS4s and construction sites under 5
acres, not the typical industrial plants or
other non-construction activities that
could directly impact production and
thus those sectors of the economy.
Discussions with representatives
within the construction industry
indicate that construction costs will
likely be passed on to buyers, thus not
seriously affecting the housing industry
directly. One commenter argued that the
rule will have a negative employment
effect because the builders will build
fewer homes requiring less building
materials as a result of the declining
demand induced by the cost of the soil
and erosion controls. EPA disagrees
with this argument because the cost of
the controls, as the percentage of the
price of a median home, is negligible
and will be passed on to final buyers.
Flexibility within the rule allows
MS4s to tailor the storm water program
requirements to their needs and
financial position, minimizing impacts.
For sedimentation and erosion controls
on construction sites, the rule
contemplates application of commonly
used BMPs to reduce costs for the
construction industry; Thus, the rule
attempts to use existing practices to
prevent pollution, which should
minimize impacts on States, Tribes,
municipalities and the construction
industry.
Thus, EPA concludes that the effect of
the rule, if any, on the national economy
will be minimal. The benefits of today's
rule more than offset any cost impacts
on the national economy.
IV. Regulatory Requirements
A. Paperwork Reduction Act
The Office of Management and Budget
(OMB) has approved some of the
information collection requirements
contained in this final rule (i.e. those
found in 40 CFR 122.26(g) and
123.35(b)) under the provisions of the
Paperwork Reduction Act, 44 U.S.C.
3501 et seq. and has assigned OMB
control number 2040-0211.
The burden and costs described below |
are for the information collection,
reporting, and record keeping
requirements for the three year period
beginning with the effective date of
today's rule. Additional information
collection requirements for regulated
small MS4s and small construction sites
will, occur after this initial three year
period and will be counted in a
subsequent information collection
requirement. The total burden of the
information collection requirements for
the first three years of this rule is
estimated at 56,369 hours with a
corresponding cost of $2,151,305
million annually. This burden and cost
is for industrial facilities to complete
and submit the no exposure
certification, for NPDES-authorized
States to process and review the no
exposure certification, and for the
NPDES-authorized States to develop
designation criteria and assess
additional MS4s outside of urbanized
areas. Compliance with the applicable
information collection requirements
imposed under this rule are mandatory,
pursuant to CWA section 402.
Exhibit 6 presents average annual
burden and cost estimates for Phase II
respondents for the first three years.
Burden means the total time, effort, or
financial resources expended by persons
to generate, maintain, retain, disclose or
provide information to or for a Federal
agency. This includes the time needed
to review instructions; develop, acquire,
install, and utilize technology and
systems for the purposes of collecting,
validating, and verifying information,
processing and maintaining
information, and disclosing and
providing information; adjust existing
ways for complying with any previously
applicable instructions and
requirements; train personnel to be able
to respond to a collection of
information; search data sources;
complete and review the collection of
information; and transmit or otherwise
disclose the information.
EXHIBIT 6.—AVERAGE ANNUAL BURDEN AND COST ESTIMATES FOR PHASE II RESPONDENTS
Information collection activity
Ind. No Expos. Facilities:2
No Expos. Certification
Annual Subtotal
NPDES-Authorized States:3
Designation of Addit. MS4s4
A
Respondents
per year
(projected) 1
36 377
15
B
Burden hours
per respond-
ent per year
(predicted)
1 0
332.8
(A)x(B)=C
Annual re-
spondent bur-
den hours
(projected)
•3R 077
36377
4 89?
D
Respondent
labor cost ($/
hr) (1998 $)
OR Q1
(C)x(D)=E
Annual Cost
($) (projected)
,fai o,o<£U
1 fin *wn
1*51 KAA
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68796 Federal Register/VoI. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
EXHIBIT 6.—AVERAGE ANNUAL BURDEN AND COST ESTIMATES FOR PHASE II RESPONDENTS—Continued
Information collection activity
No Exp Cert Proc & Rev
Annual Subtotal
Annual Totals
A
Respondents
per year
(projected) 1
30,200
B
Burden hours
per respond-
ent per year
(predicted)
0.5
(A)x(B)=C
Annual re-
spondent bur-
den hours
(projected)
15,100
19992
56,369
D
Respondent
labor cost ($/
hr) (1998$)
26.91
(C)x(D)=E
Annual Cost
($) (projected)
406,341
537 985
2.151.305
Notes:
1 Source: U.S. EPA, Office of Wastewater Management. Economic Analysis for the Storm Water Phase II Rule.
2 The total number of potential no exposure respondents was divided by 5 to estimate an annual total. It was assumed that the annual number
of respondents for the no exposure certification would be spread over the five year period the exclusion applies.
3 The number of respondents in each category represents only those respondents located within the 44 NPDES-authorized States and Terri-
tories. The burden and cost estimates provided in this section are for the NPDES-authorized States in their role as the permitting authority for
municipal designations and industrial no exposure.
4 The number of respondents for this activity, 15, represents the number of NPDES-authorized States and Territories that must develop des-
ignation criteria and assess small MS4s located outside of an urbanized area for possible Phase II coverage divided by the three year ICR pe-
riod.
Given the requirements of today's
regulation, EPA believes there will be
no capital startup and no operation and
maintenance costs associated with
information collection requirements of
the rule.
The government burden associated
with today's rule will impact State,
Tribal, and Territorial governments
(NPDES-authorized governmental
entities) that have storm water program
authority, as well as the federal
government (i.e., EPA), where it is the
NPDES permitting authority. As of
March 1999, 43 States and the Virgin
Islands had NPDES authority.
The annual burden imposed upon
authorized governmental entities
(delegated States and the Virgin Islands)
and the federal government for the next
three years is estimated to be 19,992
hours ($537,985) and 4,087 hours
(3115,948) respectively, for a total of
24,079 hours ($653,933). This estimate
is based on the average time that
governments will expend to carry out
the following activities: designate
additional MS4s (332.8 hours) and
process and review "no exposure"
certificates from industrial dischargers
(0.5 hour).
Under the existing rule, storm water
discharges from light industrial
activities identified under
§ 122.26(b)(14)(xi) were exempted from
the permit application requirements if
they were not exposed to storm water.
Today's rule expands the applicability
of the "no exposure" exclusion to
include all industrial activity regulated
under § 122.26(b)(14) (except category
(x), construction). The "no exposure"
provision is applied through the use of
a written certification process, thus
representing a slight reporting burden
increase for "light" industries with "no
exposure'.
In addition to the information
collection, reporting, and record
keeping burden for the next three years,
today's rule contains information
collection requirements that will not
begin until three years or more from the
effective date of today's rule. These
information collection requirements
were not included in the information
collection request approved by OMB.
EPA will submit these burden estimates
for OMB approval when it submits ICR
2040-0211 to OMB for renewal in three
years. The rule burdens for regulated
small MS4s and small construction sites
that will be included in the ICR renewal
fall into three areas: application for an
NPDES permit or submittal of waiver
information, record keeping of storm
water management activities, and
submittal of reports to the permitting
authority. There will also be an
additional burden for the permitting
authority to review this information.
An agency may not conduct or
sponsor, and a person is not required to
respond to a collection of information
unless it displays a currently valid OMB
control number. The OMB control
numbers for EPA's regulations are listed
in 40 CFR Part 9 and 48 CFR Chapter
15. EPA is amending the table in 40 CFR
Part 9 of currently approved ICR control
numbers issued by OMB for various
regulations to list the first three years of
information requirements contained in
this final rule.
B. Executive Order 12866
Under Executive Order 12866, [58 FR
51,735 (October 4, 1993)] the Agency
must determine whether the regulatory
action is "significant" and therefore
subject to OMB review and the
requirements of the Executive Order.
The Order defines "significant
regulatory action" as one that is likely
to result in a rule that may:
(1) have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities;
(2) create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) raise novel legal or policy issues
arising out of legal mandates, the
President's priorities, or the principles
set forth in the Executive Order.
Pursuant to the terms of Executive
Order 12866, it has been determined
that this rule is a "significant regulatory
action". As such, this action was
submitted to OMB for review. Changes
made in response to OMB suggestions or
recommendations will be documented
in the public record.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for
Federal agencies to assess the effects of
their regulatory actions on State, local,
and tribal governments and the private
sector. Under section 202 of the UMRA,
EPA generally must prepare a written
statement, including a cost-benefit
analysis, for proposed and final rules
with "Federal mandates" that may
result in expenditures to State, local,
and tribal governments, in the aggregate,
or to the private sector, of $100 million
or more in any one year. Before
promulgating an EPA rule for which a
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68797
written statement is needed, section 205
of the UMRA generally requires EPA to
identify and consider a reasonable
number of regulatory alternatives and
adopt the least costly, most cost-
effective or least burdensome alternative
that achieves the objectives of the rule.
The provisions of section 205 do not
apply when they are inconsistent with
applicable law. Moreover, section 205
allows EPA to adopt an alternative other
than the least costly, most cost-effective
or least burdensome alternative if the
Administrator publishes with the final
rule an explanation why that alternative
was not adopted.
EPA has determined that today's rule
contains a Federal mandate that may
result in expenditures of S100 million or
more in any one year for both State,
local, and tribal governments, in the
aggregate, and the private sector.
Accordingly, EPA has prepared under
section 202 of the UMRA a written
statement which is summarized below.
1. Summary of UMRA Section 202
Written Statement
EPA promulgates today's storm water
regulation pursuant to the specific
mandate of Clean Water Act section
402(p)(6), as well as sections 301, 308,
402, and 501. (33 U.S.C. sections
1342(p)(6), 1311, 1318, 1342, 1361.)
Section 402(p)(6) of the CWA requires
that EPA designate sources to be
regulated to protect water quality and
establish a comprehensive program to
regulate those sources.
In the Economic Analysis of the Final
Phase IIRule (EA), EPA describes the
qualitative and monetized benefits
associated with today's rule and then
compares the monetized benefits with
the estimated costs for the rule. EPA
developed detailed estimates of the
costs and benefits of complying with
each of the incremental requirements
imposed by the rule. These estimates,
including descriptions of the
methodology and assumptions used, are
described in detail in the EA. The
Agency used two approaches, a national
water quality model and national water
quality assessment, to estimate the
potential benefits of the rule. Both
approaches show that the benefits are
likely to exceed costs. Exhibit 3 in
section III of this preamble summarizes
the costs and benefits associated with
the basic elements of today's rule.
There are additional benefits to storm
water control that cannot be quantified
or monetized. Thus, the current estimate
of monetized benefits may understate
the true value of storm water controls
because it omits many ways by which
society is likely to benefit from reduced
storm water pollution, such as improved
aesthetic quality of waters, benefits to
wildlife and to threatened and
endangered species, cultural values, and
biodiversity benefits.
Several commenters asserted that
today's rule is an unfunded mandate
and that, without funding, the
monitoring of the already existing
pollution control programs would
suffer. In section II.D.3 of the preamble,
EPA lists some of the programs that EPA
anticipates may provide funds to help
develop and, in limited circumstances,
implement storm water management
programs.
In the EA, EPA reviewed the expected
effect of today's rule on the national
economy. The Agency determined that
the rule will have minimal impacts on
the economy or employment. This is
because the final rule regulates small
MS4s and construction sites under 5
acres, not the typical industrial plants or
other non-construction activities that
could directly impact production and
thus those sectors of the economy.
Discussions with representatives
within the construction industry
indicate that construction costs will
likely be passed on to buyers, thus not
seriously affecting the housing industry
directly. Flexibility within the rule
allows MS4s to tailor the storm water
program requirements to their needs
and financial position, minimizing
impacts. For sedimentation and erosion
controls on construction sites, the rule
contemplates application of commonly
used BMPs to reduce costs for the
construction industry. Thus, the rule
attempts to use existing practices to
prevent pollution, which should
minimize impacts on States, Tribes,
municipalities and the construction
industry.
Thus, EPA concludes that the effect of
the rule, if any, on the national economy
would be minimal. The benefits of
today's rule more than offset any cost
impacts on the national economy.
Consistent with the intergovernmental
consultation provisions of section 204 of
the UMRA and Executive Order 12875,
"Enhancing the Intergovernmental
Partnership," EPA consulted with the
governmental entities affected by this
rule.
First, EPA provided States, Tribal and
local governments with the opportunity
to comment on draft alternative
approaches for the proposed rule
through publishing a notice requesting
information and public comment in the
Federal Register on September 9,1992
(57 FR 41344). This notice presented a
full range of regulatory alternatives. At
that time, EPA received more than 130
comments, including approximately 43
percent from municipalities and 24
percent from State or Federal agencies.
These comments were the genesis of
many of the provisions in the today's
rule, including reliance on the NPDES
program framework (including general
permits), providing State and local
governments flexibility in selecting
additional sources requiring regulation,
and focusing on high priority polluters.
These comments helped to focus on
pollution prevention, watershed-based
concerns and BMPs. They also led to
certain exemptions for facilities that do
not pollute national waters.
In early 1993, EPA, in conjunction
with the Rensselaerville Institute, held
public and expert meetings to assist in
developing and analyzing options for
identifying unregulated storm water
sources and possible controls. These
meetings provided participants an
additional opportunity to provide input
into the CWA section 402(p)(6) program
development process. The final rule
addresses several of the key concerns
identified in these groups, including
provisions that provide flexibility to the
States to select sources to be controlled
and types of permits to be issued, and
flexibility to MS4s in selecting BMPs.
EPA also conducted outreach with
representatives of small entities,
including small government
representatives, in conjunction with the
convening of a Small Business
Advocacy Review Panel under SBREFA
which is discussed in section IV.E. of
the preamble.
In addition, EPA established the
Urban Wet Weather Flows Advisory
Committee under the Federal Advisory
Committee Act (FACA). The Urban Wet
Weather Flows Advisory Committee, in
turn established the Storm Water Phase
II Subcommittee. Consistent with
FACA, the membership of the
Committee and the Storm Water Phase
II Subcommittee was balanced among
EPA's various outside stakeholder
interests, including representatives from
State governments, municipal
governments (both elected officials and
appointed officials) and Tribal
governments, as well as industrial and
commercial sectors, agriculture,
environmental and public interest
groups.
In general, municipal and Tribal
government representatives supported
the NPDES approach in today's rule for
the following reasons: It will be
uniformly applied on a nationwide
basis; it provides flexibility to allow
incorporation of State and local
programs; it resolves the problem of
donut holes that cause water quality
impacts in urbanized areas; and it
allows co-permitting of small regulated
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68798 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
MS4s with those regulated under the
existing storm water program.
In contrast, State representatives
sought alternative approaches for State
implementation of the storm water
program for Phase II sources. State
representatives asserted that a non-
NPDES alternative approach best
facilitated watershed management and
avoided duplication and overlapping
regulations. These representatives
pointed out that there are a variety of
State programs—not based on the
CWA—implementing effective storm
water controls, and that EPA should
provide incentives for their
implementation and improvement in
performance. EPA continues to believe
that an NPDES approach is the best
approach in order to adequately protect
water quality. However, EPA has
worked with States on an alternative
approach that provides flexibility
within the NPDES framework. The final
rule allows States with a watershed
permitting approach to phase in permit
coverage for MS4s in jurisdictions with
a population less than 10,000 and
provides two waivers from coverage for
small MS4s. This issue is discussed in
section II.C of the preamble, Program
Framework: NPDES Approach.
Some municipal governments
objected that the rule's minimum
measures for small MS4s violate the
Tenth Amendment insofar as they
require the operators of MS4s to regulate
third parties according to the
"minimum measures" for municipal
storm water management programs. EPA
disagrees that today's rule is
inconsistent with Tenth Amendment
principles. Permits issued under today's
rule will not compel political
subdivisions of States to regulate in
their sovereign capacities, but rather to
effectively control discharges out of
their storm sewer systems in their
owner/operator capacities. For MS4s
that do not accept this "default"
minimum measures-based approach (to
control discharges out of the storm
sewer system by exercising local powers
to control discharges into the storm
sewer system), today's rule allows for
alternative permits through individual
permit applications. EPA made
revisions to the rule to allow regulated
small MS4s to opt out of the minimum
measures approach and instead apply
for an individual permit. This issue is
discussed in section II.H.S.c.iii of the
preamble, Alternative Permit Option/
Tenth Amendment.
2. Selection of the Least Costly, Most
Cost-Effective or Least Burdensome
Alternative That Achieves the
Objectives of the Statute
Today's rule evolved over time and
incorporated aspects of alternatives that
responded to concerns presented by the
various stakeholders. A primary
characteristic of today's rule is the
flexibility it offers both the permitting
authority and the regulated sources
(small MS4s and small construction
sites), by the use of general permits,
implementation of BMPs suited to
specific locations, and allowing MS4s to
develop their own program goals.
In the administrative record
supporting the proposed rule, EPA
estimated ranges of costs associated
with six different options, including a
no action option, the proposed option,
and four other options that considered
various combinations of the following:
Covering all the unregulated
construction sites below 5 acres, all
small MS4s, certain industrial and
commercial activities, and all point
sources. EPA developed detailed cost
estimates for the incremental
requirements imposed under the final
regulation, and for each of the
alternatives, and applied these estimates
to the remaining unregulated point
sources of storm water. The Agency
compared the estimated annual range of
costs imposed under today's rule and
other major options considered. The
range of values for each option included
the costs for compliance, including
paperwork requirements for the
operators of small construction sites,
industrial facilities, and MS4s and
administrative costs for State and '
Federal NPDES permitting authorities.
Today's rule reflects the least costly
option that achieves the objectives of
the statute, thus meeting the
requirements of section 205. EPA did
not consider "no regulation" to be an
"option" because it would not achieve
the objectives of CWA section 402(p)(6).
A portion of currently unregulated point
sources of storm water need to reduce
pollutants to protect water quality.
Today's rule is estimated to range in
cost from $847.6 million to S981.3
million annually, although the cost
estimate for the proposed rule was
reported as a range of $138 to $869
million annually. That range reflected a
unit cost range for the municipal
minimum measures and a cost range per
construction site for soil erosion control.
EPA has since revised its cost analysis
to allow it to report the current estimate,
which is toward the high end of the
original cost range. The four other
regulatory options considered at
proposal involved higher regulatory
costs and, therefore, were not selected.
These four options and their estimated
costs are as follows: •
(1) An option based on the August 7,
1995 direct final rule was estimated to
cost between $2.2 billion and $78.9
billion per year.
(2) A "Plan B" option was estimated
to cost between $0.6 billion and $3.2
billion per year.
(3) An option based'on the September
30, 1996 draft proposed rule was
estimated to cost between $0.2 billion
and $3.7 billion per year.
(4) An option based on the February
13,1997 draft proposed rule, was
estimated to cost between $0.2 billion
and $3.5 billion.
There are three reasons why the costs
for these four options exceeded the
estimated cost range for the proposed
rule. The first two options regulated
substantially more municipal
governments. The first, third, and fourth
options required industrial facilities to
apply for permits. Finally, the first three
options applied permit requirements to
construction sites below 1 acre.
Consequently, these options would be
more costly than today's rule even with
the revised analysis methods used to
estimate costs.
3. Effects on Small Governments
Before EPA establishes any regulatory
requirements that may significantly or
uniquely affect small governments,
including tribal governments, it must
have developed under section 203 of the
UMRA a small government agency plan.
The plan must provide for notifying
potentially affected small governments,
enabling officials of affected small
governments to have meaningful and
timely input in the development of EPA
regulatory proposals with significant
Federal intergovernmental mandates,
and informing, educating, and advising
small governments on compliance with
the regulatory requirements. EPA has
determined that this rule contains no
regulatory requirements that might
significantly or uniquely affect small
governments. Although today's rule
expands the NPDES program (with
modifications) to certain MS4s serving
populations below 100,000 and
although many MS4s are owned by
small governments, EPA does not
believe today's rule significantly or
uniquely affects small governments. As
explained in section IV.E. of the
preamble, EPA today certifies that the
rule will not have a significant impact
on small governmental jurisdictions. In
addition, the rule will not have a unique
impact on small governments because
the rule will affect small governments in
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68799
to the same extent as (or to a lesser
extent than) larger governments that are
already covered by the existing storm
water rules. Thus.'today's rule is not
subject to the requirements of section
203 of UMRA.
Notwithstanding this finding, in
developing today's rule, EPA provided
notice of the requirements to potentially
affected small governments; enabled
officials of affected small governments
to provide meaningful and timely input
in the development of regulatory
proposals; and informed, educated and
advised small governments on
compliance with the requirements.
Concerning notice. EPA provided
States, local, and Tribal governments
with the opportunity to comment on
alternative approaches for an early draft
of the proposed rule by publishing a
notice requesting information and
public comment in the Federal Register
on September 9,1992 (57 FR 41344).
This notice presented a full range of
regulatory alternatives. At that time,
EPA received more than 130 comments,
including approximately 43 percent
from municipalities and 24 percent from
State or Federal agencies.
The Agency also provided, through
the SBREFA panel process and the
FACA process, the opportunity for
elected officials of small governments
(and their representatives) to
meaningfully participate in the
development of the rule. Through such
participation and exchange, EPA not
only notified potentially affected small
governments of requirements of the
developing rule, but also allowed
officials of affected small governments
to have meaningful and timely input
into the development of regulatory
proposals.
In addition to involving
municipalities in the development of
the rule, EPA also continues to inform,
educate, and advise small governments
on compliance with the requirements of
today's rule. For example, EPA
supported 10 workshops, presented by
the American Public Works Association
from September 1998 through May
1999, designed to educate local
governments on the implementation of
the rule. The workshop curriculum
included information on a variety of key
issues such as anticipated regulatory
requirements, agency reporting, best
management practices, construction site
controls, post construction management
for new and redeveloped sites, public
education and public involvement
strategies, detection and control of illicit
discharges, and good housekeeping
practices. Moreover, EPA has prepared
a series of fact sheets, available on the
EPA website at www.epa.gov/owm/sw/
toolbox, that explains the rule in detail.
Finally, to assist small governments in
implementing the Phase II program,
EPA is committed to the following: (1)
developing a tool box of implementation
strategies; (2) providing written
technical assistance, including guidance
on developing BMPs and measurable
goals; and (3) compiling a
comprehensive evaluation of the NPDES
municipal storm water Phase II program
over the next 13 years.
D. Executive Order 13132
Executive Order 13132, entitled
"Federalism" (64 FR 43255, August 10,
1999), requires EPA to develop an
accountable process to ensure
"meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications." "Policies that have
federalism implications" is defined in
the Executive Order to include
regulations that have "substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government." Under
Executive Order 13132, EPA may not
issue a regulation that has federalism
implications, that imposes substantial
direct compliance costs, and that is not
required by statute, unless the Federal
government provides the funds
necessary to pay the direct compliance
costs incurred by State and local
governments, or EPA consults with
State and local officials early in the
process of developing the proposed
regulation. EPA also may not issue a
regulation that has federalism
implications and that preempts State
law unless the Agency consults with
State and local officials early in the
process of developing the proposed
regulation.
If EPA complies by consulting,
Executive Order 13132 requires EPA to
provide to the Office of Management
and Budget (OMB), in a separately
identified section of the preamble to the
rule, a federalism summary impact
statement (FSIS). The FSIS must include
a description of the extent of EPA's
prior consultation with State and local
officials, a summary of the nature of
their concerns and the agency's position
supporting the need to issue the
regulation, and a statement of the extent
to which the concerns of State and local
officials have been met. For final rules
subject to Executive Order 13132, EPA
also must submit to OMB a statement
from the agency's Federalism Official
certifying that EPA has fulfilled the
Executive Order's requirements.
EPA has concluded that this final rule
may have federalism implications. As
discussed above in section IV.C., the
rule contains a Federal mandate that
may result in the expenditure by State,
local and tribal governments, in the
aggregate, of $100 million or more in
any one year. Accordingly, the rule may
have substantial direct effects on the
States; on the relationship between the
national government and the States, or
on the distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132. Moreover, the
rule will impose substantial direct
compliance costs on State or local
governments. Accordingly, EPA
provides the following FSIS under
section 6(b) of Executive Order 13132.
1. Description of the Extent of the
Agency's Prior Consultation with State
and Local Governments
Although this rule was proposed long
before the November 2,1999 effective
date of Executive Order 13132, EPA
consulted extensively with affected
State and local governments pursuant to
the intergovernmental consultation
provisions of Executive Order 12875,
"Enhancing the Intergovernmental
Partnership" (now revoked by Executive
Order 13132) and section 204 of UMRA.
First, EPA provided State and local
governments the opportunity to
comment on draft alternative
approaches for the proposed rule
through publishing a notice requesting
information and public comment in the
Federal Register on September 9, 1992
(57 FR 41344). This notice presented a
full range of regulatory alternatives. At
that time, EPA received more than 130
comments, including approximately 43
percent from municipalities and 24
percent from State or Federal agencies.
These comments were the genesis of
many of the provisions in the today's
rule, including reliance on the NPDES
program framework (including general
permits), providing State and local
governments flexibility in selecting
additional sources requiring regulation,
and focusing on high priority polluters.
These comments helped to focus on
pollution prevention, watershed-based
concerns and BMPs. They also led to
certain exemptions for facilities that do
not pollute national waters.
In early 1993, EPA, in conjunction
with the Rensselaerville Institute, held
public and expert meetings to assist in
developing and analyzing options for
identifying unregulated storm water
sources and possible controls. These
meetings provided participants an
additional opportunity to provide input
into the CWA section 402(p)(6) program
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68800 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
development process. The final rule
addresses several of the key concerns
identified in these groups, including
provisions that provide flexibility to the •
States to select sources to be controlled
and types of permits to be issued, and
flexibility to MS4s in selecting BMPs.
EPA also conducted outreach with
representatives of small entities,
including small governments, in
conjunction with the convening of a
Small Business Advocacy Review Panel
under SBREFA which is discussed in
section III.F. of the preamble.
In addition, EPA established the
Urban Wet Weather Flows Advisory
Committee (FACA), which in turn
established the Storm Water Phase II
Subcommittee. Consistent with the
Federal Advisory Committee Act, the
membership of the Committee and the
Storm Water Phase II Subcommittee was
balanced among EPA's various outside
stakeholder interests, including
representatives from State governments,
municipal governments (both elected
officials and appointed officials) and
Tribal governments, as well as
industrial and commercial sectors,
agriculture, environmental and public
interest groups.
2. Summary of Nature of State and Local
Government Concerns, and Statement of
the Extent to Which Those Concerns
Have Been Met
In general, municipal government
representatives supported the NPDES
approach in today's rule for the
following reasons: it will be uniformly
applied on a nationwide basis; it
provides flexibility to allow
incorporation of State and local
programs; it resolves the problem of
donut holes that cause water quality
impacts in urbanized areas; and it
allows co-permitting of small regulated
MS4s with those regulated under the
existing storm water program.
In contrast, State representatives
sought alternative approaches for State
implementation of the storm water
program for Phase II sources. State
representatives asserted that a non-
NPDES alternative approach best
facilitated watershed management and
avoided duplication and overlapping
regulations. These representatives
pointed out that there are a variety of
State programs—not based on the
CWA—implementing effective storm
water controls, and that EPA should
provide incentives for their
implementation and improvement in
performance. EPA continues to believe
that an NPDES approach is the best
approach in order to adequately protect
water quality. However, EPA has
worked with States on an alternative
approach that provides flexibility
within the NPDES framework. The final
rule allows States with a watershed
permitting approach to phase in permit
coverage for MS4s in jurisdictions with
a population less than 10,000 and
provides two waivers from coverage for
small MS4s. This issue is discussed in
section II.C of the preamble, Program
Framework: NPDES Approach.
Some municipal governments
objected that the rule's minimum
measures for small MS4s violate the
Tenth Amendment insofar as they
require the operators of MS4s to regulate
third parties according to the
"minimum measures" for municipal
storm water management programs. EPA
disagrees that today's rule is
inconsistent with Tenth Amendment
principles. Permits issued under today's
rule will not compel political
'subdivisions of States to regulate in
their sovereign capacities, but rather to -
effectively control discharges out of
their storm sewer systems in their
owner/operator capacities. For MS4s
that do not accept this "default"
minimum measures-based approach (to
control discharges out of the storm
sewer system by exercising local powers
to control discharges into the storm
sewer system), today's rule allows for
alternative permits through individual
permit applications. EPA made
revisions to the rule to allow regulated
small MS4s to opt out of the minimum
measures approach and instead apply
for an individual permit. This issue is
discussed in section II.H.3.c.iii of the
preamble, Alternative Permit Option/
Tenth Amendment.
3. Summary of the Agency's Position
Supporting the Need To Issue the
Regulation
As discussed more fully in section I.E.
above, today's rule is needed because
uncontrolled storm water discharges
from areas of urban development and
construction activity have been shown
to have negative impacts on receiving
waters by changing the physical,
biological, and chemical composition of
the water, resulting in an unhealthy
environment for aquatic organisms,
wildlife, and people. As discussed in
section II.C., the NPDES approach in
today's rule is needed to ensure uniform
application on a nationwide basis, to
provide flexibility to allow
incorporation of State and local
programs, to resolve the problem of
donut holes that cause water quality
impacts in urbanized areas, and to allow
co-permitting of small regulated MS4s
with those regulated under the existing
storm water program.
The draft final rule was transmitted to
OMB on July 6, 1999. Because
transmittal occurred before the
November 2,1999 effective date of
Executive Order 13132, certification
under section 8 of the Executive Order
is not required.
E. Regulatory Flexibility Act (RFA), as
amended by the Small Business
Regulatory Enforcement Fairness Act of
1996 (SBREFA), 5 U.S.C. 601 et seq.
The RFA generally requires an
Agency to prepare a regulatory
flexibility analysis of any rule subject to
notice and comment rulemaking
requirements under the Administrative
Procedure Act or any other statute
unless the agency certifies that the rule
will not have a significant economic
impact on a substantial number of small
entities. Small entities include small
businesses, small organizations, and
small governmental jurisdictions.
For purposes of assessing the impact
of today's rule on small entities, small
entity is defined as: (1) a building
contractor (SIC 15) with up to $17.0
million in annual revenue; (2) a small
governmental jurisdiction that is a
government of a city, county, town,
school district, or special district with a
population of less than 50,000; and (3)
a small organization that is any not-for-
profit enterprise which is independently
owned and operated and is not
dominant in its field.
After considering the economic
impacts of today's final rule on small
entities, I certify that this action will not
have a significant economic impact on
a substantial number of small entities.
Although this final rule will not have
a significant economic impact on a
substantial number of small entities,
EPA nonetheless has tried to reduce the
impact of this rule on small entities.
For purposes of evaluating the
economic impact of this rule on small
governmental jurisdictions, EPA
compared annual compliance costs with
annual government revenues obtained
from the 1992 Census of Governments,
using state-specific estimates of annual
revenue per capita for municipalities in
three population size categories (fewer
than 10,000, 10,000-25,000, and
25,000-50,000).
In order to estimate the annual
compliance cost for small governmental
jurisdictions, EPA used the mean
variable municipal cost of $8.93 per
household as calculated in a 1998 study
of 121 municipalities conducted by the
national Association of Flood and
Stormwater Management Agencies
(NAFSMA). In addition, EPA used the
estimated fixed administrative costs of
SI,545 per municipality for reporting,
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68801
recordkeeping, and application
requirements for today's rule.
In evaluating the economic impact of
this rule on small governmental
jurisdictions, EPA determined that
compliance costs represent more than 1
percent of estimated revenues for only
10 percent of small governments and
more than 3 percent of the revenue for
0.7 percent of these entities. In both
absolute and relative terms, EPA does
not consider this a significant economic
impact on a substantial number of small
entities.
EPA normally uses the "sales test" for
determining the economic impact on
small businesses. Under a sales test,
annual compliance costs are compared
with the small business's total annual
sales. However, the direct application of
the sales test is not suitable in this case,
because of the uncertainty associated
with estimating the number of units an
"average" developer/contractor
develops or builds in a typical year. For
this rule, EPA has approximated the
sales test by estimating compliance
costs for three sizes of construction sites
and comparing them with a
representative sale price for three
building categories. Although EPA's
analysis is not exactly a "sales test," it
is similar to the sales test, producing
comparable results.
For small building contractors, EPA
estimated administrative compliance
costs of S870 per site for applying for
coverage, reporting, record keeping,
monitoring and preparing a storm water
pollution prevention plan. EPA
estimated compliance costs for
installing soil and erosion controls as
ranging from 51,206 to $8,709 per site.
EPA compliance cost estimates are
based on 27 theoretical model
construction sites designed to mimic the
mostly likely used best management
practices around the country.
In evaluating the economic impact on
small building contractors, EPA divided
the revised compliance costs per
construction start by the appropriate
homes-to-site ratio for each of the three
sizes of construction sites. The average
compliance cost per home ranges from
approximately S450 to S650. EPA
concluded that compliance costs are
roughly 0.22 to 0.43 percent of both the
mean, S181.300, and median, 3151,000,
sale price of a home.
The absence of data to specifically
assess annual compliance costs for
building contractors as a percentage of
annual sales (i.e., a very direct estimate
of the impact on potentially affected
small businesses) led EPA to perform
additional market analysis to examine
the ability of potentially affected firms
to pass along regulatory costs to buyers
for single-family homes constructed
subject to today's rule. If the small
building contractors covered by the rule
are able to pass on the costs of
compliance, either completely or
partially, to their purchasers, then the
rule's impact on these small business
entities is significantly reduced. The
market analysis shows that demand for
homes is not overly sensitive to small
changes in price, therefore builders
should be able to pass on at least a
significant fraction of the compliance
costs to buyers.
EPA also assessed the effect of the
building contractors' costs on average
monthly mortgage rates and on the
demand for new homes. Based on that
screening analysis, EPA concludes that,
the costs to building contractors, and
the potential changes in housing prices
and monthly mortgage payments for
single-family home buyers, are not
expected to have a significant impact on
the market for single-family houses. In
both absolute and relative terms, EPA
does not consider this a significant
economic impact on a substantial
number of small entities.
EPA also certified this rule at
proposal. Even though the Agency was
not required to, we convened a Small
Business Advocacy Review Panel
("Panel") in June 1997. A number of
small entity representatives had already
been actively involved with EPA
through the FACA process, and were,
therefore, broadly knowledgeable about
the development of the proposed and
final rules. Prior to convening the Panel,
EPA consulted with the Small Business
Administration to identify a group of
small entity representatives to advise
the Panel. The Agency distributed a
briefing package describing its
preliminary analysis under the RFA to
the small entity representatives (as well
as to representatives from OMB and
SBA) and conducted two telephone
conference calls and an all-day meeting
at EPA Headquarters in May of 1997
with small entity representatives. With
this preliminary work complete, in June
1997, EPA formally convened the
SBREFA Panel, comprising
representatives from OMB, SBA, EPA's
Office of Water and EPA's Small
Business Advocacy Chair. The Panel
received written comments from small
entity representatives based on their
involvement in the earlier meetings, and
invited additional comments.
Consistent with requirements of the
RFA, the Panel evaluated the assembled
materials and small-entity comments on
issues related to: (1) a description and
the number of small entities that would
be regulated; (2) a description of the
projected record keeping, reporting and
other compliance requirements
applicable to small entities; (3)
identification of other Federal rules that
may duplicate, overlap, or conflict with
the proposal to the final rule; and (4)
regulatory alternatives that would
minimize any significant economic
impact of the rule on small entities
while accomplishing the stated
objectives of the CWA section 402(p)(6).
On August 7, 1997, the Panel
provided a Final Report (hereinafter,
"Report") to the EPA Administrator.' A
copy of the Report is included in the
docket for the rule. The Panel
acknowledged and commended EPA's
efforts to work with stakeholders,
including small entities, through the
FACA process. The SBREFA Panel
stated that, because of EPA's extensive
outreach and responsiveness in
addressing stakeholder concerns,
commenters during the SBREFA process
raised fewer concerns than might
otherwise have been expected. Based on
the advice and recommendations of the
Panel, today's rule includes a number of
provisions designed to minimize any
significant impact on small entities. (See
Appendix 5).
F. National Technology Transfer And
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 ("NTTAA"), Public Law
104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary
consensus standards in its regulatory
activities unless to do so would be
inconsistent with applicable law or
otherwise impractical. Voluntary
consensus standards are technical
standards (e.g., materials specifications,
test methods, sampling procedures, and
business practices) that are developed or
adopted by voluntary consensus
standard bodies. The NTTAA directs
EPA to provide Congress, through OMB,
explanations when the Agency decides
not to use available and applicable
voluntary consensus standards.
This action does not mandate the use
of any particular technical standards,
although in designing appropriate BMPs
regulated small MS4s and small
construction sites are encouraged to use
any voluntary consensus standards that
may be applicable and appropriate.
Because no specific technical standards
are included in the rule, section 12(d) of
the NTTAA is not applicable.
G. Executive Order 13045
Executive Order 13045: "Protection of
Children from Environmental Health
Risks and Safety Risks" (62 FR 19885,
April 23, 1997) applies to any rule that:
(1) Is determined to be "economically
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68802 Federal Register / Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
significant" as defined under E.O.
12866, and (2) concerns an
environmental health or safety risk that
EPA has reason to believe may have a
disproportionate effect on children. If
the regulatory action meets both criteria,
the Agency must evaluate the
environmental health or safety effects of
the planned rule on children, and
explain why the planned regulation is
preferable to other potentially effective
and reasonably feasible alternatives
considered by the Agency.
This final rule is not subject to E.O.
13045 because it does not concern an
environmental health or safety risk that
may have a disproportionate effect on
children. The rule expands the scope of
the existing NPDES permitting program
to require small municipalities and •
small construction sites to regulate their
storm water discharges. The rule does
not itself, however, establish standards
or criteria that would be included in
permits for those sources. Such
standards or criteria will be developed
through other actions, for example, in
the establishment of water quality
standards or subsequently in the
issuance of permits themselves. As
such, today's action does not concern an
environmental health or safety risk that
may have a disproportionate effect on
children. To the extent it does address
a risk that may have a disproportionate
effect on children, expanding the scope
of the permitting program will have a
corresponding disproportionate benefit
to children to protect them from such
risk.
H. Executive Order 13084
Under Executive Order 13084, EPA
may not issue a regulation that is not
required by statute, that significantly or
uniquely affects the communities of
Indian tribal governments, and that
imposes substantial direct compliance
costs on those communities, unless the
Federal government provides the funds
necessary to pay the direct compliance
costs incurred by the Tribal
governments, or EPA consults with
those governments. If EPA complies by
consulting, Executive Order 13084
requires EPA to provide to the Office of
Management and Budget, in a separately
identified section of the preamble to the
rule, a description of the extent of EPA's
prior consultation with representatives
of affected Tribal governments, a
summary of the nature of their concerns,
and a statement supporting the need to
issue the regulation. In addition,
Executive Order 13084 requires EPA to
develop an effective process permitting
elected officials and other
representatives of Indian Tribal
governments "to provide meaningful
and timely input in the development of
regulatory policies on matters that
significantly or uniquely affect their
communities."
Today's rule does not significantly or
uniquely affect the communities of
Indian Tribal governments. Even though
the Agency is not required to address
Tribes under the Regulatory Flexibility
Act, EPA used the same revenue test
that was used for municipalities to
assess the impact of the rule on
communities of Tribal governments and
determine that they will not be
significantly affected. In addition, the
rule will not have a unique impact on
the communities of Tribal governments
because small municipal governments
are also covered by this rule and larger
municipal governments are already
covered by the existing storm water
rules. Accordingly, the requirements of
section 3(b) of Executive Order 13084
do not apply to this rule.
I. Congressional Review Act
The Congressional Review Act, 5
U.S.C. section 801 et seq.,as added by
the Small Business Regulatory
Enforcement Fairness Act of 1996,
generally provides that before a rule
may take effect, the agency
promulgating the rule must submit a
rule report, which includes a copy of
the rule, to each House of the Congress
and the Comptroller General of the
United States. EPA will submit a report
containing this rule and other required
information to the U.S. Senate, the U.S.
House of Representatives, and the
Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This rule is a "major rule" as defined by
5 U.S.C. 804(2"). This rule will be
effective on February 7, 2000.
List of Subjects
40 CFR Part 9
Environmental protection, Reporting
and recordkeeping requirements.
40 CFR Part 122
Administrative practice and
procedure, Confidential business
information, Environmental protection,
Hazardous substances, Incorporation by
reference, Reporting and recordkeeping
requirements, Sewage disposal, Waste
treatment and disposal, Water pollution
control.
40 CFR Part 123
Administrative practice and
procedure, Confidential business
information, Hazardous materials,
Indians—lands, Intergovernmental
relations, Penalties, Reporting and
recordkeeping requirements, Sewage
disposal, Waste treatment and disposal,
Water pollution control, Penalties.
40 CFR Part 124
Administrative practice and
procedure, Air pollution control,
Hazardous waste, Indians—lands,
Reporting and recordkeeping
requirements, Water pollution control,
Water supply.
Dated: October 29, 1999.
Carol M. Browner,
Administrator.
Appendices to the Preamble
APPENDIX 1 TO PREAMBLE—FEDERALLY-RECOGNIZED AMERICAN INDIAN AREAS LOCATED FULLY OR PARTIALLY IN
BUREAU OF THE CENSUS URBANIZED AREAS
[Based on 1990 Census data]
State
American Indian Area
Urbanized Area
AZ
AZ
AZ
CA
CA
Pascua Yacqui Reservation (pt.): Pascua Yacqui Tribe of Arizona
Salt River Reservation (pt.): Salt River Pima-Maricopa Indian Community of the Salt
River Reservation, California.
San Xavier Reservation (pt.): Tohono O'odham Nation of Arizona (formerly known as
the Papago Tribe of the Sells, Gila Bend & San Xavier Reservation).
Augustine Reservation: Augustine Band of Cahuilla Mission of Indians of the Augustine
Reservation, CA.
Cabazon Reservation: Cabazon Band of Cahuilla Mission Indians of the Cabazon Res-
ervation, CA.
Tucson, AZ (Phase I).
Phoenix, AZ (Phase I).
Tucson, AZ (Phase I).
Indio-Coachella, CA (Phase I).
Indio-Coachella, CA (Phase I).
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68803
APPENDIX 1 TO PREAMBLE—FEDERALLY-RECOGNIZED AMERICAN INDIAN AREAS LOCATED FULLY OR PARTIALLY IN
BUREAU OF THE CENSUS URBANIZED AREAS—Continued
[Based on 1990 Census data]
Slate
American Indian Area
Urbanized Area
CA
CA
FL
FL
ID
ME
MN
NM
NV
NV
OK
OK
OK
OK
OK
OK
OK
TX
WA
WA
WA
Wl
Fort Yuma (Quechan) (pt.): Quechan Tribe of the Fort Yuma Indian Reservation, Cali-
fornia & Arizona.
Redding Rancheria: Redding Rancheria of California
Hollywood Reservation: Seminole Tribe
Seminole Trust Lands: Seminole Tribe of Florida, Dania, Big Cypress & Brighton Res-
ervations.
Fort Hall Reservation and Trust Lands: Shosone-Bannock Tribes of the Fort Hall Res-
ervation of Idaho.
Penobscot Reservation and Trust Lands (pt.): Penobscot Tribe of Maine
Shakopee Community: Shakopee Mdewakanton Sioux Community of Minnesota (Prior
Lake).
Sandia Pueblo (pt.): Pueblo of Sandia, New Mexico
Las Vegas Colony: Las Vegas Tribe of Paiute Indians of the Las Vegas Indian Colony,
Nevada.
Reno-Sparks Colony: Reno-Sparks Indian Colony, Nevada
Osage Reservation (pt.): Osage Nation of Oklahoma
Absentee Shawnee-Citizens Band of Potawatomi TJSA (pt.): Absentee-Shawnee Tribe
of Indians of Oklahoma; Citizen Potawatomi Nation, Oklahoma.
Cherokee TJSA 9 (pt.): Cherokee Nation of Oklahoma; United Keetoowah Band of
Cherokee Indians of Oklahoma.
Cheyenne-Arapaho TJSA (pt.): Cheyenne-Arapaho Tribes of Oklahoma
Choctaw TJSA (pt.): Choctaw Nation of Oklahoma
Creek TJSA (pt.): Alabama-Quassarte Tribal Town of the Creek Nation of Oklahoma;
Kialegee Tribal Town of the Creek Indian Nation of Oklahoma; Muscogee (Creek) Na-
tion of Oklahoma; Thlopthlocco Tribal Town of the Creek Nation of Oklahoma.
Kiowa-Comanche-Apache-Ft. Sill Apache: Apache Tribe of Oklahoma; Comanche In-
dian Tribe, Oklahoma; Fort Sill Apache Tribe of Oklahoma; Kiowa Indian Tribe of
Oklahoma.
Ysleta del Sur Reservation: Ysleta Del Sur Pueblo of Texas
Muckleshoot Reservation and Trust Lands (pt.): Muckleshoot Indian Tribe of the
Muckleshoot Reservation.
Puyallup Reservation and Trust Lands (pt.): Puyallup Tribe of the Puyallup Reservation,
WA.
Yaklma Reservation (pt.): Confederated Tribes and Bands of the Yakama Indian Nation
of the Yakama Reservation, WA.
Oneida (West) (pt.): Oneida Tribe of Wisconsin ...:
Yuma, AZ-CA.
Redding, CA.
Fort Lauderdale, FL (Phase I).
Fort Lauderdale, FL (Phase I).
Pocatello, ID.
Bangor, ME.
Minneapolis-St. Paul, MN (Phase I).
Albuquerque, NM (Phase I).
Las Vegas, NV (Phase I).
Reno, NV (Phase I).
Tulsa, OK (Phase I).
Oklahoma City, OK (Phase I).
Ft. Smith, AR-OK; Tulsa, OK (Phase I).
Oklahoma City, OK (Phase I).
Ft.' Smith, AR-OK (Phase I).
Tulsa, OK (Phase I).
Lawton, OK.
El Paso, TX-NM (Phase I).
Seattle, WA (Phase I).
Tacoma, WA (Phase I).
Yakima, WA.
Green Bay, Wl.
Please Note
"[pt.)" indicates that the American Indian
Area (AIA) listed is only partially located
within the referenced urbanized area.
The first line under "American Indian
Area" is the name of the federally-recognized
reservation/colony/rancheria or trust land as
it appears in the Bureau of the Census data.
After this first line, the names of the tribes
included in the AIA are listed as they appear
in the Bureau of Indian Affairs' list of
Federally Recognized Indian Tribes. [Federal
Register: Nov. 13, 1996, Vol. 66, No. 220, pgs.
58211-58216]
"TJSAs" are Tribal Jurisdiction Statistical
Areas in Oklahoma that are defined in
conjunction with the federally-recognized
tribes in Oklahoma who have definite land
areas under their jurisdiction, but do not
have reservation status.
"(Phase I)" indicates that the referenced
urbanized area includes a medium or large
MS4 currently regulated under the existing
NPDES storm water program (i.e., Phase I).
Any Tribally operated MS4 within these such
urban areas would not automatically have
been covered under Phase I, however.
Sources
Michael Ratcliffe, Geographic Concepts
Division, Bureau of the Census, U.S.
Department of Commerce.
1990 Census of Population and Housing,
Summary Population and Housing
Characteristics, United States. Tables 9 & 10.
[1990 CPH-1-1]. Bureau of the Census, U.S.
Department of Commerce.
BILLING CODE 6560-50-P
_
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68804 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
APPENDIX 2 TO PREAMBLE—URBANIZED AREA ILLUSTRATION
Central Place
( j Incorporated Place
A
Federal Indian Reservation
(FIR)
Unincorporated "Urbanized
Area" Portion of a Town
(MCD) or County
Urbanized Area
Town or Township as a
functioning Minor Civil Division
(MCD). An MCD is the primary
subdivision of a County.
County
BILLING CODE 6S60-SO-C
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Federal Register/Vol. 64. No. 235/Wednesday, December 8, 1999/Rules and Regulations 6880J
Appendix 3 to the Preamble —
Urbanized Areas of the United States
and Puerto Rico
(Source: 1990 Census of Population and
Housing, U.S. Bureau of the Census —
This list is subject to change with the
Decennial Census]
Alabama
Anniston
Auburn-Opelika
Birmingham
Columbus, GA-AL
Decatur
Dothan
Florence
Gadsden
Huntsville
Mobile
Montgomery
Tuscaloosa
Alaska
Anchorage
Arizona
Phoenix
Tucson
Yuma, AZ-CA
Yuba City
Yuma
Colorado
Boulder
Colorado Springs
Denver
Fort Collins
Grand Junction
Greeley
Longmont
Pueblo
Connecticut
Bridgeport-Milford
Bristol
Danbury, CT-NY
Hartford-Middletown
Nsw Brit sin
New Haven-Meriden
New London-Norwich
Norwalk
Springfield, MA-CT
Stamford, CT-NY
Waterbury
Worcester, MA-CT
Delaware
Den/Pi*
LJUVCl
Wilmington, DE-NJ-MD-PA
Kailua
Idaho
Boise City
Idaho Falls
Pocatello
Illinois
Alton
Aurora
Beloit, WI-IL
Bloomington-Normal
Champaign-Urbana
Chicago, IL-Northwestern IN
Crystal Lake
Davenport-Rock Island-Moline, IA-IL
Decatur
Dubuque
Elgin
Joliet
Kankakee
Peoria
Rockford
Round Lake Beach-McHenry, IL-WI
St. Louis, MO-IL
Springfield
Indiana
Anderson
Bloomington
Arkansas
Fayetteville-Springdale
Fort Smith, AR-OK
Little Rock-North Little Rock
Memphis. TN-AR-MS
Pine Bluff
Texarkana, AR-TX
California
Antioch-Pittsburgh
Bakersfield
Chico
Davis
Fairfield
Fresno
Hemet-San Jacinto
Hesperia-Apple Valley-Victorville
Indio-Coachella
Lancaster-Palmdale
Lodi
Lompoc
Los Angeles
Merced
Modesto
Napa
Oxnard-Ventura
Palm Springs
Redding
Riverside-San Bernardino
Sacramento
Salinas
San Diego
San Francisco-Oakland
San Jose
San Luis Obispo
Santa Barbara
Santa Cruz
Santa Maria
Santa Rosa
Seaside-Monterey
Sim! Valley
Stockton
Vacaville
Visalia
Watsonville
District of Columbia
Washington, DC-MD-VA
Florida
Daytona Beach
Deltona
Fort Lauderdale-Hollywood-Pompano Beach
Fort Myers-Cape Coral
Fort Pierce
Fort Walton Beach
Gainesville
Jacksonville
Kissimmee
Lakeland
Melbourne-Palm Bay
Miami-Hialeah
Naples
Ocala
Orlando
Panama City
Pensacola
Punta Gorda
Sarasota-Bradenton
Spring Hill
Stuart
Tallahassee
Tampa-St. Petersburg-Clearwater
Titusville
Vero Beach
West Palm Beach-Boca Raton-Delray Beach
Winter Haven
Georgia
Albany
Athens
Atlanta
Augusta
Brunswick
Chattanooga
Columbus
Macon
Rome
Savannah
Warner Robins
Hawaii
Honolulu
Chicago, IL-Northwestern IN
Elkhart-Goshen
Evansville, IN-KY
Fort Wayne
Indianapolis
Kokomo
Lafayette-West Lafayette
Louisville, KY-IN
Muncie
South Bend-Mishawaka, IN-MI
Terre Haute
Iowa
Cedar Rapids
Davenport-Rock Island-Moline, IA-IL
Des Moines
Dubuque, IA-IL-WI
Iowa City
Omaha, NE-IA
Sioux City, IA-NE-SD
Waterloo-Cedar Falls
Kansas
Kansas City, MO-KS
Lawrence
St. Joseph, MO-KS
Topeka
Wichita
Kentucky
Cincinnati, OH-KY
Clarksville, TN-KY
Evansville, IN-KY
Huntington-Ashland, WV-KY-OH
Lexington-Fayette
Louisville, KY-IN
Owensboro
Louisiana
Alexandria
Baton Rouge
Houma
Lafayette
Lake Charles
Monroe
New Orleans
Shreveport
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68806 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
Slidell
Maine
Bangor
Lewiston-Auburn
Portland
Portsmouth-Dover-Rochester, NH-ME
Maryland
Annapolis
Baltimore
Cumberland
Frederick
Hagerstown, MD-PA-WV
Washington, DC-MD-VA
Wilmington, DE-NJ-MD-PA
Massachusetts
Boston
Brockton
Fall River, MA-RI
Fitchburg-Leominster
Hyannis
Lawrence-Haverhill, MA-NH
Lowell, MA-NH
New Bedford
Pitts field
Providence-Pawtucket, RI-MA
Springfield, MA-CT
Tau'nton
Worcester, MA-CT
Michigan
Ann Arbor
Battle Creek
Bay City
Benton Harbor
Detroit
Flint
Grand Rapids
Holland
Jackson
Kalamazoo
Lansing-East Lansing
Muskegon
Port Huron
Saginaw
South Bend-Mishawaka, IN-MI
Toledo, OH-MI
Minnesota
Duluth, MN-WI
Fargo-Moorhead, ND-MN
Grand Forks, ND-MN
La Crosse, WI-MN
Minneapolis-St.Paul
Rochester
St. Cloud
Mississippi
Biloxi-Gulfport
Hattiesburg
Jackson
Memphis, TN-AR-MS
Pascagoula
Missouri
Columbia
Joplin
Kansas City, MO-KS
St. Joseph, MO-KS
St. Louis, MO-IL
Springfield
Montana
Billings
Great Falls
Missoula
Nebraska
Lincoln
Omaha, NE-IA
Sioux City, IA-NE-SD
Nevada
Las Vegas
Reno
New Hampshire
Lawrence-Haverhill, MA—NH
Lowell, MA-NH
Manchester
Nashua
Portsmouth-Dover-Rochester, NH-ME
New Jersey
Allentown-Bethlehem-Easton, PA—NJ
Atlantic City
New York, NY-Northeastern NJ
Philadelphia, PA-NJ
Trenton, NJ-PA
Vineland-Millville
Wilmington, DE-NJ-MD-PA
New Mexico
Albuquerque
El Paso
Las Cruces
Santa Fe
New York
Albany-Schenectady-Troy
Binghamton
Buffalo-Niagara Falls
Danbury, CT-NY
Elmira
Glens Falls
Ithaca
Newburgh
New York, NY-Northeastern NJ
Poughkeepsie
Rochester
Stamford, CT-NY
Syracuse
Utica-Rome
North Carolina
Asheville
Burlington
Charlotte
Durham
Fayetteville
Gastonia
Goldsboro
Greensboro
Greenville
Hickory
High Point
Jacksonville
Kannapolis
Raleigh
Rocky Mount
Wilmington
Winston-Salem
North Dakota
Bismark
Fargo-Moorhead, ND—MN
Grand Forks, ND-MN
Ohio
Akron
Canton
Cincinnati, OH-KY
Cleveland
Columbus
Dayton
Hamilton
Huntington-Ashland, WV-KY-OH
Lima
Lorain-Elyria
Mansfield
Middletown
Newark
Parkersburg, WV-OH
Sharon, PA-OH
Springfield
Steubenville-Weirton, OH-WV-PA
Toledo, OH-MI
Wheeling, WV-OH
Youngstown-Warren
Oklahoma
Fort Smith, AR-OK
Lawton
Oklahoma City
Tulsa
Oregon
Eugene-Springfield
Longview
Medford
Portland-Vancouver, OR-WA
Salem
Pennsylvania
Allentown-Bethlehem-Easton, PA-NJ
Altoona
Erie
Hagerstown, MD-PA-WV
Harrisburg
Johnstown
Lancaster
Monessen
Philadelphia, PA-NJ
Pittsburgh
Pottstown
Reading
Scranton-Wilkes-Barre
Sharon, PA-OH
State College
Steubenville-Weirton, OH-WV-PA
Trenton, NJ-PA
Williamsport
Wilmington, DE-NJ-MD-PA
York
Rhode Island
Fall River, MA-RI
Newport
Providence-Pawtucket, RI—MA
South Carolina
Anderson
Augusta, GA-SC
Charleston
Columbia
Florence
Greenville
Myrtle Beach
Rock Hill
Spartanburg
Sumter
South Dakota
Rapid City
Sioux City, IA-NE-SD
Sioux Falls
Tennessee
Bristol, TN-Bristol, VA
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Federal Register/Vol. 64, No. 235-/Wednesday, December 8, 1999/Rules and Regulations 68807
Chattanooga, TN-GA
Clarksville, TN-KY
Jackson
Johnson City
Kingsport, TN-VA
Knoxville
Memphis, TN-AR-MS
Nashville
Texas
Abilene
Amarillo
Austin
Beaumont
Brownsville
Bryan-College Station
Corpus Christi
Dallas-Fort Worth
Denton
El Paso. TX-NM
Galveston
Harlingen
Houston
Killeen
Laredo
Lewisville
Longview
Lubbock
McAllen-Edinburg-Mission
Midland
Odessa
Port Arthur
San Angelo
San Antonio
Sherman-Denison
Temple
Texarkana, TX-Texarkana, AR
Texas City
Tyler
Victoria
Waco
Wichita Falls
Utah
Logan
Ogden
Provo-Orem
Salt Lake City
Vermont
Burlington
Virginia
Bristol, TN-Bristol, VA
Charlottesville
Danville
Fredericksburg
Kingsport, TN-VA
Lynchburg
Norfolk-Virginia Beach-Newport News
Petersburg
Richmond
Roanoke
Washington, DC-MD-VA
Washington
Bellingham
Bremerton
Longview, WA-OR
Olympia
Portland-Vancouver, OR-WA
Richland-Kennewick-Pasco
Seattle
Spokane
Tacoma
Yakima
West Virginia
Charleston
Cumberland, MD-WV
Hagerstown, MD-PA-WV
Huntington-Ashland, WV-KY-OH
Parkersburg, WV-OH
Steubenville-Weirton, OH-WV-PA
Wheeling, WV-OH
Wisconsin
Appleton-Neenah
Beloit, WI-IL
Duluth, MN-WI
Eau Claire
Green Bay
Janesville
Kenosha
La Crosse, WI-MN
Madison
Milwaukee
Oshkosh
Racine
Round Lake Beach-McHenry, IL-WI
Sheboygan
Wausau
Wyoming
Casper
Cheyenne
Puerto Rico
Aquadilla
Arecibo
Caguas
Cayey
Humacao
Mayaguez
Ponce
San Juan
Vega Baja-Manati
BILLING CODE 6560-50-P
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68808 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
Appendix 4 to the Preamble—No Exposure Certification Form
NPDES
FORM
3510-11
&EPA
United States Environmental Protection Agency
Washington, DC 20460
NO EXPOSURE CERTIFICATION for Exclusion from
NPDES Storm Water Permitting
Form Approved
OMB No. 2040-0211
Submission of this No Exposure Certification constitutes notice that the entity identified in Section A does not require permit authorization for its storm water
discharges associated with industrial activity in the State identified in Section B under EPA's Storm Water Multi-Sector General Permit due to the existence
ot a condition of no exposure.
A condition of no exposure exists at an industrial facility when all industrial materials and activities are protected by a storm resistant shelter to prevent
exposure to rain. snow, snowmelt, and/or runoff. Industrial materials or activities include, but are not limited to. material handling equipment or activities,
industrial machinery, raw materials, intermediate products, by-products, final products, or waste products. Material handling activities include the storage.
loading and unloading, transportation, or conveyance of any raw material, intermediate product, final product or waste product. A storm resistant shelter is
not required for the following industrial materials and activities:
- drums, barrels, tanks, and similar containers that are tightly sealed, provided those containers are not deteriorated and do not leak. "Sealed"
means banded or otherwise secured and without operational taps or valves;
- adequately maintained vehicles used in material handling; and
-• final products, other than products that would be mobilized in storm water discharges (e.g., rack salt).
A No Exposure Certification must be provided for each facility qualifying for the no exposure exclusion. In addition, the exclusion from NPDES permitting is
available on a facility-wide basis only, not for individual outfalls. If any industrial activities or materials are or will be exposed to precipitation, the facility is
not eligible for the no exposure exclusion.
By signing and submitting this No Exposure Certification form, the entity in Section A is certifying that a condition of no exposure exists at its facility or site,
and is obligated to comply with the terms and conditions of 40 CFR 122.26(g).
ALL INFORMATION MUST BE PROVIDED ON THIS FORM.
Detailed instructions for completing this form and obtaining the no exposure exclusion are provided on pages 3 and 4.
A. Facility Operator Information
1. Name: I I I I I I I I I I I I I I
2. Phone:
3. Mailing Address: a. Street:
b. City: I i l i l l I I I I 1 1 I I I I I I I ) I I i c. State: l_j_J d. Zip Code: I I I I I I-1 I I I I
c. County: I I l I l
B. Facility/Site Location Information
1. Facility Name: I l l l l I I I I I I I
2. a. Street Address: I I I I I I I I I I . I
b. City: I I I l I I I I I I I I i I I i I I I I l I I
d. State: I I I e. Zip Code: I l l I I l-l I I I I
3. Is the facility located on Indian Lands? Yes QJ No | |
4. Is this a Federal facility? Yes Q No [~|
5. a. Latitude: I I I ° I I I I I I b. Longitude:
6. a. Was the facility or site previously covered under an NPDES storm water permit? Yes I I No I I
b. If yes, enter NPDES permit number:
7. SIC/Activity Codes: Primary: I I I I I Secondary (if applicable): I I I I I
8. Total size of site associated with industrial activity: 'acres
9. a. Have you paved or roofed over a formerly exposed, pervious area in order to qualify for the no exposure exclusion? Yes | | No | |
b. If yes. please indicate approximately how much area was paved or roofed over. Completing this question does not disqualify you for the no exposure
exclusion. However, your permitting authority may use this information in considering whether storm water discharges from your site are likely to have
an adverse impact on water quality, in which case you could be required to obtain permit coverage.
Less than one acre | |
One to five acres {~j
More than five acres | |
EPA Form 3510-11 (10-99)
Page 1 of 4
-------
Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68809
3510-11
NO EXPOSURE CERTIFICATION for Exclusion from
NPDES Storm Water Permitting
Form Approved
OMB No. 2040-0211
C. Exposure Checklist
Are any of the following materials or activities exposed to precipitation, now or in the foreseeable future?
(Ploase check either "Yes" or "No" in the appropriate box.) If you answer "Yes" to any of these questions
(1) through (11), you are not eligible for the no exposure exclusion.
1. Using, storing or cleaning industrial machinery or equipment, and areas where residuals from using, storing
or cleaning industrial machinery or equipment remain and are exposed to storm water
2. Materials or residuals on the ground or in storm water inlets from spills/leaks
3. Materials or products from past industrial activity
4. Material handling equipment (except adequately maintained vehicles)
5. Materials or products during loading/unloading or transporting activities
6. Materials or products stored outdoors (except final products intended for outside use [e.g., new cars] where
exposure to storm water does not result in the discharge of pollutants)
7. Materials contained in open, deteriorated or leaking storage drums, barrels, tanks, and similar containers
8. Materials or products handled/stored on roads or railways owned or maintained by the discharger
9. Waste material (except waste in covered, non-leaking containers [e.g., dumpstersj)
10. Application or disposal of process wastewater (unless otherwise permitted)
11. Particulate matter or visible deposits of residuals from roof stacks and/or vents not otherwise regulated
(i.e.. under an air quality control permit) and evident in the storm water outflow
Yes
D
a
a
a
a
a
a
No
a
a
a
a
a
a
a
a
a
a
0. Certification Statement
I certily under penalty of law that I have read and understand the eligibility requirements for claiming a condition of "no exposure" and obtaining an
exclusion from NPDES storm water permitting.
I certify under penalty of law that there are no discharges of storm water contaminated by exposure to industrial activities or materials from the industrial
facility or site identified in this document (except as allowed under 40 CFR I22.26(g)(2)).
I understand that I am obligated to submit a no exposure certification form once every five years to the NPDES permitting authority and. if requested, to
the operator of the local municipal separate storm sewer system (MS4) into which the facility discharges (where applicable). I understand that I must
allow the NPDES permitting authority, or MS4 operator where the discharge is into the local MS4. to perform inspections to confirm the condition of no
exposure and to make such inspection reports publicly available upon request. I understand that I must obtain coverage under an NPDES permit prior
to any point source discharge of storm water from the facility. '
Additionally, I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a
system designed to assure that qualified personnel properly gathered and evaluated the information submitted. Based on my inquiry of the person or
persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is to the best of my
knowledge and belief true, accurate and complete. I am aware that there are significant penalties for submitting false information, including the possibility
of line and imprisonment for knowing violations.
Print Name: I I I i I I I I I 1 I
I I l
I I I I
I I I I I
Print Title:
Signature:
Date: I I I I I I I
EPA Form 3510-11 (10-99)
Page 2 of 4
-------
68810 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
NPDES |
FORM
3510-11 I
&EPA
Instructions for the NO EXPOSURE CERTIFICATION for
Exclusion from NPDES Storm Water Permitting
Form Approved
OMB No. 2040-0211
Who May File a No Exposure Certification
Federal law at 40 CFR Part 122.26 prohibits point source discharges of
storm water associated with industrial activity to waters of the U.S. without
a National Pollutant Discharge Elimination System (NPDES) permit. However,
NPDES permit coverage is not required for discharges of storm water
associated with industrial activities identified at 40 CFR 122.26(b)(14)(i)-
(ix) and (xi) if the discharger can certify that a condition of "no exposure"
exists at the industrial facility or site.
Storm water discharges from construction activities identified in 40 CFR
122.26(b)(14)(x) and (b)(15) are not eligible for the no exposure exclusion.
Obtaining and Maintaining the No Exposure Exclusion
This form is used to certify that a condition of no exposure exists at the
industrial facility or site described herein. This certification is only applicable
in jurisdictions where EPA is the NPDES permitting authority and must be
re-submitted at least once every five years.
The industrial facility operator must maintain a condition of no exposure at
its facility or site in order for the no exposure exclusion to remain applicable.
If conditions change resulting in the exposure of materials and activities to
storm water, the facility operator must obtain coverage under an NPDES
storm water permit immediately.
Where to File the No Exposure Certification Form
Mail the completed no exposure certification form to:
Storm Water No Exposure Certification (4203)
USEPA
401 M Street, SW
Washington, D.C. 20460
Completing the Form
You must type or print, using uppercase letters, in appropriate areas only.
Enter only one character per space (i.e.. between the marks). Abbreviate
if necessary to stay within the number of characters allowed for each item.
Use one space for breaks between words. One form must be completed
for each facility or site for which you are seeking to certify a condition of no
exposure. Additional guidance on completing this form can be accessed
through EPA's web site at www.epa.gov/owm/sw. Please make sure you
have addressed all applicable questions and have made a photocopy for
your records before sending the completed form to the above address.
Section A. Facility Operator Information
1. Provide the legal name of the person, firm, public organization, or any
other entity that operates the facility or site described in this certification.
The name of the operator may or may not be the same as the name of
the facility. The operator is the legal entity that controls the facility's
operation, rather than the plant or site manager.
2. Provide the telephone number of the facility operator.
3. Provide the mailing address of the operator (P.O. Box numbers may be
used). Include the city, state, and zip code. All correspondence will
be sent to this address.
Section B. Facility/Site Location Information
1. Enter the official or legal name of the facility or site.
2. Enter the complete street address (if no street address exists, provide
a geographic description [e.g., Intersection of Routes 9 and 55]), city,
county, state, and zip code. Do not use a P.O. Box number.
3. Indicate whether the facility is located on Indian Lands.
4. Indicate whether the industrial facility is operated by a department or
agency of the Federal Government (see also Section 313 of the Clean
Water Act).
5. Enter the latitude and longitude of the approximate center of the facility
or site in degrees/minutes/seconds. Latitude and longitude can
be obtained from United States Geological Survey (USGS) quadrangle
or topographic maps, by calling 1 -(888) ASK-USGS, or by accessing
EPA's web site at http://www.epa.gov/owm/sw/induslry/index.htm and
selecting Latitude and Longitude Finders under the Resources/Permit
section.
Latitude and longitude for a facility in decimal form must be converted
to degrees (°). minutes ('). and seconds (") for proper entry on
the certification, form. To convert decimal latitude or longitude to
degrees/minutes/seconds, follow the steps in the following example.
Example: Convert decimal latitude 45.1234567 to degrees (°). minutes
('). and seconds (").
a) The numbers to the left of the decimal point are the degrees: 45°.
b) To obtain minutes, multiply the first four numbers to the right of the
decimal point by 0.006: 1234 x 0.006 = 7.404.
c) The numbers to the left of the decimal point in the result obtained
in (b) are the minutes: 7'.
d) To obtain seconds, multiply the remaining three numbers to the
right of the decimal from the result obtained in (b) by 0.06:
404 x 0.06 = 24.24. Since the numbers to the right of the decimal
point are not used, the result is 24".
e) The conversion for 45.1234567 = 45° 7' 24".
6. Indicate whether the facility was previously covered under an NPDES
storm water permit. If so, include the permit number.
7. Enter the 4-digit SIC code which identifies the facility's primary activity.
and second 4-digit SIC code identifying the facility's secondary activity,
if applicable. SIC codes can be obtained from the Standard Industrial
Classification Manual, 1987.
8. Enter the total size of the site associated with industrial activity in acres.
Acreage may be determined by dividing square footage by 43,560. as
demonstrated in the following example.
Example: Convert 54.450 ft2 to acres
Divide 54,450 ft2 by 43,560 square feet per acre:
54,450 «2 * 43,560 ft2/acre = 1.25 acres.
9. Check "Yes" or "No" as appropriate to indicate whether you have paved
or roofed over a formerly exposed, pervious area (i.e., lawn, meadow,
dirt or gravel road/parking lot) in order to qualify for no exposure. If yes,
also indicate approximately how much area was paved or roofed over
and is now impervious area.
EPA Form 3510-11 (10-99)
Page 3 of 4
-------
Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68811
NPDES I
FORM
3510-11
S-EPA
Instructions for the NO EXPOSURE CERTIFICATION for
Exclusion from NPDES Storm Water Permitting
Form Approved
OMB No. 2040-0211
Section C. Exposure Checklist
Check "Yes" or "No" as appropriate to describe the exposure conditions at
your facility. II you answer "Yes" to ANY of the questions (1) through (11)
in this section, a potential for exposure exists at your site and you cannot
certify lo a condition of no exposure. You must obtain (or already have)
coverage under an NPDES storm water permit. After obtaining permit
coverage, you can institute modifications to eliminate the potential for a
discharge of storm water exposed to industrial activity, and then certify to
a condition of no exposure.
Section O. Certification Statement
Federal statutes provide for severe penalties for submitting false information
on this application form. Federal regulations require this application to be
signed as follows:
For a corporation: by a responsible corporate officer, which means:
(i) president, secretary, treasurer, or vice-president of the corporation
in charge of a principal business function, or any other person
who performs similar policy or decision making functions for the
corporation, or
(ii) the manager of one or more manufacturing, production, or
operating facilities, provided the manager is authorized to make
management decisions which govern the operation of the
regulated facility including having the explicit or implicit duty of
making major capital investment recommendations, and initiating
and directing other comprehensive measures to assure long
term environmental compliance with environmental laws and
regulations: the manager can ensure that the necessary systems
are established or actions taken to gather complete and accurate
information for permit application requirements; and where
authority to sign documents has been assigned or delegated to
the manager in accordance with corporate procedures:
For a partnership or sole proprietorship: by a general partner or the
proprietor; or
For a municipal. State, Federal, or other public facility: by either a
principal executive or ranking elected official.
Paperwork Reduction Act Notice
Public reporting burden for this certification is estimated to average 1.0 hour
per certification, including time for reviewing instructions, searching existing
data sources, gathering and maintaining the data needed, and completing
and reviewing the collection of information. Burden means the total time,
effort, or financial resources expended by persons to generate, maintain,
retain, or disclose to provide information to or for a Federal agency. This
includes the time needed to review instructions; develop, acquire, install.
and utilize technology and systems for the purposes of collecting, validating,
and verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to comply with
any previously applicable instructions and requirements; train personnel to
be able to respond to a collection of information; search data sources;
complete and review the collection of information; and transmit or otherwise
disclose the information. An agency may not conduct or sponsor, and a
person is not required to respond to, a collection of information unless it
displays a currently valid OMB control number. Send comments regarding
the burden estimate, any other aspect of the collection of information, or
suggestions for improving this form, including any suggestions which may
increase or reduce this burden to: Director. OPPE Regulatory Information
Division (2137), USEPA, 401 M Street, SW. Washington, D.C. 20460.
Include the OMB control number of this form on any correspondence. Do
not send the completed No Exposure Certification form to this address.
EPA Form 3510-11 (10-99)
Page 4 ot 4
BILLING CODE 6560-50-C
Appendix 5 to Preamble—Regulatory
Flexibility for Small Entities
A. Regulatory Flexibility for Small
Municipal Storm Sewer Systems (MS4s)
Different Compliance. Reporting, or
Timetables That Are Responsive to Resources
of Small Entities
NPDES permitting authorities can issue
general permits instead of requiring
individual permits. This flexibility avoids the
high application costs and administrative
burden associated with individual permits.
NPOES permitting authorities can specify a
time period of up to five years for small MS4s
to fully develop and implement their
program
Analytic monitoring is not required.
After the first permit term and subsequent
permit terms, submittal of a summary report
is only required in years two and four (Phase
I municipalities are currently required to
submit a detailed report each year).
A brief reporting format is encouraged to
facilitate compiling and analyzing data from
submitted reports. EPA intends to develop a
model form for this purpose.
NPDES Permitting Authorities can phase in
permit coverage for small MS4s serving
jurisdictions with a population under 10,000
on a schedule consistent with a State
watershed permitting approach.
Clarifying, Consolidating, or Simplifying
Compliance and Reporting Requirements
The rule avoids duplication in permit
requirements by allowing NPDES permitting
authorities to include permit conditions that
direct an MS4 to follow the requirements of
a qualifying local program rather than the
requirements of a minimum measure.
Compliance with these programs is
considered compliance with the NPDES
general permit.
The rule allows NPDES permitting
authorities to recognize existing
responsibilities among different municipal
entities to satisfy obligations for the
minimum control measures.
A further alternative allows a small MS4 to
satisfy its NPDES permit obligations if
another governmental entity is already
implementing a minimum control measure in
the jurisdiction of the small MS4. The
following conditions must be met:
1. The other entity is implementing the
control measure,
2. The particular control measure (or
component thereof) is at least as stringent as
the corrersponding NPDES permit
requirement, and
3. The other entity agrees to implement the
control measure on your behalf.
The rule allows a covered small MS4 to
"piggy-back" on to the storm water
management program of an adjoining Phase
I MS4. A small MS4 is waived from the
application requirements of
§ 122.26(d)(l)(iii), (iv) and (d)(2)(iii)
[discharge characterization] and may satisfy
the requirements of § 122.26(d)(l)(v) and
(d)(2)(iv) [identifying a management plan] by
referencing the adjoining Phase I MS4's
storm water management plan.
The rule accommodates the use of the
watershed approach through NPDES general
permits that could be issued on a watershed
basis. The small MS4 can develop measures
that are tailored to meet their watershed
requirements. The small MS4's storm water
management program can tie into watershed-
wide plans.
Performance Rather Than Design Standards
for Small Entities
Small governmental jurisdictions whose
MS4s are covered by this rule are allowed to
choose the best management practices
(BMPs) to be implemented and the
measurable goals for each of the minimum
control measures:
1. Public education and outreach on storm
water impacts
2. Public Involvement/Participation
3. Illicit discharge detection and
elimination
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68812 Federal Register / Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
4. Construction site storm water runoff
control
5. Post-construction storm water
management in new development and
redevelopment
6. Pollution prevention/good housekeeping
for municipal operations
EPA will provide guidance and
recommend, but not mandate, certain BMPs
for some of the minimum control measures
listed above. States can provide guidance to
supplement or supplant EPA guidance.
Small MS4s can identify the measurable
goals for each of the minimum control
measures listed above. In their reports to the
NPDES permitting authority, the small MS4s
must evaluate their progress towards
achievement of their identified measurable
goals.
Waivers for Small Entities From Coverage
The rule allows permitting authorities to
waive from coverage MS4s operated by small
governmental jurisdictions located within an
urbanized area and serving a population less
than 1,000 people where the permitting
authority has determined the MS4 is riot
contributing substantially to the pollutant
loadings of an interconnected MS4 and, if the
MS4 discharges pollutants that have been
identified as a cause of impairment in the
receiving water of the MS4 then the
permitting authority has determined that
storm water controls are not needed based on
a TMDL that addresses the pollutants of
concern.
The rule allows the permitting authority to
waive from coverage MS4s serving a
population under 10,000 where the
permitting authority has evaluated all waters
that receive a discharge from the MS4 and
the permitting authority has determined that
storm water controls are not needed based on
a TMDL that addresses the pollutants of
concern and future discharges do not have
the potential to result in exceedances of
water quality standards.
B. Regulatory Flexibility for Small
Construction Activities
Different Compliance, Reporting, or
Timetables That Are Responsive to Resources
of Small Entities
The rule gives NPDES permitting
authorities discretion not to require the
submittal of a notice of intent (NOI) for
coverage under a NPDES general permit,
thereby reducing administrative and
financial burden. All construction sites
disturbing greater than 5 acres must submit
an NOI.
Clarifying, Consolidating, or Simplifying
Compliance and Reporting Requirements
The rule avoids duplication by allowing
the NPDES permitting authority to
incorporate by reference State, Tribal, or
local programs under a NPDES general
permit. Compliance with these programs is
considered compliance with the NPDES
general permit.
Performance Rather Than Design Standards
for Small Entities
The operator of a covered construction
activity selects and implement the BMPs
most appropriate for the construction site
based on the operator's storm water pollution
prevention plan.
Waivers for Small Entities From Coverage
Waivers could be granted based on the use
of a rainfall erosivity factor or a
comprehensive analysis of water quality
impacts.
(A) Low rainfall waiver: When the rainfall
erosivity factor ("R" from Revised Universal
Soil Loss Equation) is less than 5 during the
period of construction activity, a permit is
not required.
(B) Determination based on Water Quality
Analysis: The NPDES permitting authority
can waive from coverage construction
activities disturbing from 1 acre up to 5 acres
of land where storm water controls are not
needed based on:
1. A TMDL approved or established by
EPA that addresses the pollutants of concern,
or
2. For non-impaired waters, an equivalent
analysis that determines that such allocations
are not needed to protect water quality based
on consideration of existing in-stream
concentrations, expected growth in pollutant
contributions from all sources, and a margin
of safety.
C. Regulatory Flexibility for Industrial/
Commercial Facilities
Waivers for Small Entities From Coverage
The rule provides a "no-exposure" waiver
provision for Phase I industrial/commercial
facilities. Qualifying facilities seeking this
provision simply need to complete a self-
certification form indicating that no
industrial materials or activities are exposed
to rain, snow, snow melt and/or runoff.
Appendix 6 of Preamble—
Governmental Entities Located Fully or
Partially Within an Urbanized Area
(This is a reference list only, not a list of
all operators of small MS4s subject to
§§ 122.32-122.36. For example, a listed
governmental entity is only regulated if it
operates a small MS4 within an "urbanized
area" boundary as determined by the Bureau
of the Census. Furthermore, entities such as
military bases, large hospitals, prison
complexes, universities, sewer districts, and
highway departments that operate a small
MS4 within an urbanized area are also
subject to the permitting regulations but are
not individually listed here. See
§ 122.26(b)(16) "for the definition of a small
MS4 and § 122.32{a) for the definition of a
regulated small MS4.)
{Source: 1990 Census of Population and
Housing, U.S. Bureau of the Census. This list
is subject to change with the Decennial
Census)
AL Anniston city
AL Attalla city
AL Auburn city
AL Autauga County
AL Blue Mountain town
AL Calhoun County
AL Colbert County
AL Dale County
AL Decatur city
AL Dothan city
AL Elmore County
AL Etowah County
AL Flint City town
AL Florence city
AL Gadsden city
AL Glencoe city
AL Grimes town
AL Hartselle city
AL Hobson City town
AL Hokes Bluff city
AL Houston County
AL Kinsey town
AL Lauderdale County
AL Lee County
AL Limestone County
AL Madison County
AL Midland City town
AL Montgomery County
AL Morgan County
AL Muscle Shoals city
AL Napier Field town
AL Northport city
AL Opelika city
AL Oxford city
AL Phenix City city
AL Prattville city
AL Priceville town
AL Rainbow City city
AL Russell County
AL Sheffield city
AL Southside city
AL Sylvan Springs town
AL Talladega County
AL Tuscaloosa city
AL Tuscaloosa County
AL Tuscumbia city
AL Weaver city
AR Alexander town
AR Barling city
AR Benton County
AR Cammack Village city
AR Crawford County
AR Crittenden County
AR Farmington city
AR Fayetteville city
AR Fort Smith city
AR Greenland town
AR Jacksonville city
AR Jefferson County
AR Johnson city
AR Marion city
AR Miller County
AR North Little Rock city
AR Pine Bluff city
AR Pulaski County
AR Saline County
AR Sebastian County
AR Shannon Hills city
AR Sherwood city
AR Springdale city
AR Sunset town
AR Texarkana city
AR Van Buren city
AR Washington County
AR West Memphis city
AR White Hall city
AZ Apache Junction city
AZ Chandler city
AZ El Mirage town
AZ Gilbert town
AZ Guadalupe town
AZ Maricopa County
AZ Oro Valley town
AZ Paradise Valley town
AZ Peoria city
AZ Final County
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 6881;
AZ South Tucson city
AZ Surprise town
AZ Tolleson city
AZ Youngtown town
AZ Yuma city
AZ Yuma County
CA Apple Valley town
CA Belvedere city
CA Benicia city
CA Brentwood city
CA Butte County
CA Capitola city
CA Carmel-by-the-Sea city
CA Carpinteria city
CA Ceres city
CA Chico city
CA Compton city
CA Corte Madera town
CA Cotati city
CA Davis city
CA Del Key Oaks city
CA Fairfax town
CA Hesperia city
CA Imperial County
CA Lake wood city
CA Lancaster city
CA Larkspur city
CA Lodi city
CA Lompoc city
CA Marin County
CA Marina city
CA Marysville city
CA Merced city
CA Merced County
CA Mill Valley city
CA Monterey city
CA Monterey County
CA Morgan Hill city
CA Napa city
CA Napa County
CA Novato city
CA Pacific Grove city
CA Palm Desert city
CA Palmdale city
CA Piedmont city
CA Placer County
CA Redding city
CA Rocklin city
CA Rohnert Park city
CA Roseville city
CA Ross town
CA San Anselmo town
CA San Buenaventura (Ventura) city
CA San Francisco city
CA San Joaquin County
CA San Luis Obispo city
CA San Luis Obispo County
CA San Rafael city
CA Sand City city
CA Santa Barbara city
CA Santa Barbara County
CA Santa Cruz city
CA Santa Cruz County
CA Santa Maria city
CA Sausalito city
CA Scotts Valley city
CA Seaside city
CA Shasta County
CA Solano County
CA Sonoma County
CA Stanislaus County
CA Suisun City city
CA Suiter County
CA Tiburon town
CA Tulare County
CA Vacaville city
CA Victorville city
CA Villa Park city
CA Visalia city
CA Watsonville city
CA West Sacramento city
CA Yolo County
CA Yuba City city
CA Yuba County
CO Adams County
CO Arvada city
CO Boulder city
CO Boulder County
CO Bow Mar town
CO Broomfield city
CO Cherry Hills Village city
CO Columbine Valley town
CO Commerce City city
CO Douglas County
CO Edgewater city
CO El Paso County
CO Englewood city
CO Evans city
CO Federal Heights city
CO Fort Collins city
CO Fountain city
CO Garden City town
CO Glendale city
CO Golden city
CO Grand Junction city
CO Greeley city
CO Greenwood Village city
CO Jefferson County
CO La Salle town
CO Lakeside town
CO Larimer County
CO Littleton city
CO Longmont city
CO Manitou Springs city
CO Mesa County
CO Mountain View town
CO Northglenn city
CO Pueblo city
CO Pueblo County
CO Sheridan city
CO Thornton city
CO Weld County
CO Westminster city
CO Wheat Ridge city
CT Ansoniacity
CT Avon town
CT Beacon Falls town
CT Berlin town
CT Bethel town
CT Bloomfield town
CT Bozrah town
CT Branford town
CT Bridgeport city
CT Bristol city
CT Brookfield town
CT Burlington town
CT Cheshire town
CT Cromwell town
CT Danbury city
CT Darien town
CT Derby city
CT Durham town
CT East Granby town
CT East Hartford town
CT East Haven town
CT East Lyme town
CT East Windsor town ,
CT Easton town
CT Ellington town
CT Enfield town
CT Fairfield County
CT Fairfield town
CT Farmington town
CT Franklin town
CT Glastonbury town
CT Greenwich town
CT Groton city
CT Groton town
CT Guilford town
CT Hamden town
CT Hartford city
CT Hartford County
CT Ledyard town
CT Lisbon town
CT Litchfield County
CT Manchester town
CT Meriden city
CT Middlebury town
CT Middlefield town
CT Middlesex County
CT Middletown city
CT Milford city (remainder)
CT Monroe town
CT Montville town
CT Naugatuck borough
CT New Britain city
CT New Canaan town
CT New Fairfield town
CT New Haven city
CT New Haven County
CT New London city
CT New London County
CT New Milford town
CT Newington town
CT Newtown town
CT North Branford town
CT North Haven town
CT Norwalk city
CT Norwich city
CT Orange town
CT Oxford town
CT Plainville town
CT Plymouth town
CT Portland town
CT Preston town
CT Prospect town
CT Rocky Hill town
CT Seymour town
CT Shelton city
CT Sherman town
CT Somers town
CT South Windsor town
CT Southington town
CT Sprague town
CT Stonington town
CT Stratford town
CT Suffield town
CT Thomaston town
CT Thompson town
CT Tolland County
CT Tolland town
CT Trumbull town
CT Vernon town
CT Wallingford town
CT Waterbury city
CT Waterford town
CT Watertown town
CT West Hartford town
CT West Haven city
CT Weston town
CT Westport town
CT Wethersfield town
CT Wilton town
CT Windham County
CT Windsor Locks town
CT Windsor town
CT Wolcott town
CT Woodbridge town
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68814 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
L city
CT Woodmont borough
DE Camden town
DE Dover city
DE Kent County
DE Newark city
DE Wyoming town
FL Alachua County
FL Baldwin town
FL Bay County
FL Belleair Shore town
FL Biscayne Park village
FL Brevard County
FL Callaway city
FL Cape Canaveral city
FL Cedar Grove town
FL Charlotte County
FL Cinco Bayou town
FL Clay County
FL Cocoa Beach cit
FL Cocoa city
FL Collier County
-F-L Daytona Beach city
FL Daytona Beach Shores city
FL Destin city
FL Edgewater city
FL El Portal village
FL Florida City city
FL Fort Pierce city
FL Fort Walton Beach city
FL Gainesville city
FL Gulf Breeze city
FL Hernando County
FL Hillsboro Beach town
FL Holly Hill city
FL Indialantic town
FL Indian Harbour Beach city
FL Indian River County
FL Indian River Shores town
FL Indian Shores town
FL Kissimmee city
FL Lazy Lake village
FL Lynn Haven city
FL Malabar town
FL Marion County
FL Martin County
FL Mary Esther city
FL Melbourne Beach town
FL Melbourne city
FL Melbourne Village town
FL Naples city
FL New Smyrna Beach city
FL Niceville city
FL Ocala city
FL Ocean Breeze Park town
FL Okaloosa County
FL Orange Park town
FL Ormond Beach city
FL Osceola County
FL Palm Bay city "
FL Panama City city
FL Parker city
FL Ponce Inlet town
FL Port Orange city
FL Port St. Lucie city
FL Punta Gorda city
FL Rockledge city
FL Santa Rosa County
FL Satellite Beach city
FL Sewall's Point town
FL Shalimar town
FL South Daytona city
FL Springfield city
FL St. Johns County
FL St. Lucie County
FL St. Lucie village
FL Stuart city
FL Sweetwater city
FL Titusville city
FL Valparaiso city
FL Vero Beach city
FL Virginia Gardens village
FL Volusia County
FL Walton County
FL Weeki Wachee city
FL West Melbourne city
FL Windermere town
GA Albany city
GA Athens city
GA Bartow County
GA Brunswick city
GA Catoosa County
GA Centerville city
GA Chattahoochee County
GA Cherokee County
GA Chickamauga city
GA Clarke County
GA Columbia County
GA Conyers city
GA Bade County
GA Dougherty County
GA Douglas County
GA Douglasville city
GA Fayette County
GA Floyd County
GA Fort Oglethorpe city
GA Glynn County
GA Grovetown city
GA Henry County
GA Houston County
GA Jones County
GA Lee County
GA Lookout Mountain city
GA Mountain Park city
GA Oconee County
GA Payne city
GA Rockdale County
GA Rome city
GA Rossville city
GA Stockbridge city
GA Vernonburg town
GA Walker County
GA Warner Robins city
GA Winterville city
GA Woodstock city
IA Altoona city
IA Asbury city
IA Bettendorf city
IA Black Hawk County
IA Buffalo city
IA Carter Lake city
IA Cedar Falls city
IA Clive city
IA Coralville city
IA Council Bluffs city
IA Dallas County
IA Dubuque city
LA Dubuque County
IA Elk Run Heights city
IA Evansdale city
IA Hiawatha city
IA Iowa City city
IA Johnson County
LA Johnston city
IA Le Claire city
IA Linn County
IA Marion city
IA Nor walk city
IA Panorama Park city
IA Pleasant Hill city
IA Polk County
IA Pottawattamie County
IA Raymond city
LA Riverdale city
IA Robins city
IA Scott County
IA Sergeant Bluff city
IA Sioux City city
IA University Heights city
LA Urbandale city
IA Warren County
IA Waterloo city
IA West Des Moines city
IA Windsor Heights city
IA Woodbury County
ID Ada County
ID Ammon city
ID Bannock County
ID Bonneville County
ID Chubbuck city
ID Idaho Falls city
ID lona city
ID Pocatello city
ID Power County
IL Addison township
IL Addison village
IL Algonquin township
IL Algonquin village
IL Alorton village
IL Alsip village
IL Alton city
IL Antioch township
IL Antioch village
IL Arlington Heights village
IL Aroma Park village
IL Aroma township
IL Aurora city
IL Aurora township
IL Avon township
IL Ball township
IL Bannockburn village
IL Barrington township
IL Barrington village
IL Bartlett village
IL Bartonville village
IL Batavia city
IL Batavia township
IL Beach Park village
IL Bedford Park village
IL Belleville city
IL Bellevue village
IL Bellwood village
IL Bensenville village
IL Benton township
IL Berkeley village
IL Berwyn city
IL Bethalto village
IL Blackhawk township
IL Bloom township
IL Bloomingdale township
IL Bloomingdale village
IL Bloomington city
IL Bloomington township
IL Blue Island city
IL Bolingbrook village
IL Bourbonnais township
IL Bourbonnais village
IL Bowling township
IL Bradley village
IL Bremen township
IL Bridgeview village
IL Bristol township
IL Broadview village
IL Brookfield village
IL Brooklyn village
IL Buffalo Grove village
IL Burbank city
IL Burnham village
IL Burr Ridge village
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68815
IL Burritt township
1L Burton township
IL Cahokia village
IL Calumet City city
IL Calumet Park village
IL Calumet township
IL Canteen township
IL Capital township
IL Carbon Cliff village
IL Carol Stream village
IL Carpentersville Village
IL Gary village
IL Caseyville township
IL Caseyville village
IL Centreville city
IL Centreville township
IL Champaign city
IL Champaign County
IL Champaign township
IL Channahon township
IL Cherry Valley township
IL Cherry Valley village
IL Chicago city
IL Chicago Heights city
IL Chicago Ridge village
IL Chouteau township
IL Cicero town
IL Cincinnati township
IL Clarendon Hills village
IL Coal Valley township
IL Coal Valley village
IL Collinsville city
IL Collinsville township
IL Colona township
IL Colona village
IL Columbia city
IL Country Club Hills city
IL Countryside city
IL Crest Hill city
IL Crestwood village
IL Crete township
IL Crete village
IL Creve Coeur village
IL Crystal Lake city
IL Cuba township
IL Curran township
IL Darien city
IL Decatur city
IL Decatur township
IL Deer Park village
IL Deerfield township
IL Deerfield village
IL Des Plaines city
IL Dixmoor village
IL Dolton village
IL Dorr township
IL Downers Grove township
IL Downers Grove village
IL Dry Grove township
IL Du Page township
IL Dundee township
IL Dunleith township
IL Dupo village
IL East Alton village
IL East Dubuque city
IL East Dundee village
IL East Hazel Crest village
IL East Molina city
IL East Peoria city
IL East St. Louis city
IL Edwardsville city
IL Edwardsville township
IL Ela township
IL Elgin city
IL Elgin township
IL Elk Grove township
IL Elk Grove Village village
IL Elm Grove township
IL Elmhurst city
IL Elmwood Park village
IL Evanston city
IL Evergreen Park village
IL Fairmont City village
IL Fairview Heights city
IL Flossmoor village
IL Fondulac township
IL Ford Heights village
IL Forest Park village
IL Forest View village
IL Forsyth village
IL Fort Russell township
IL Foster township
IL Fox Lake village
IL Fox River Grove village
IL Frankfort township
IL Frankfort village
IL Franklin Park village
IL Fremont township
IL Gardner township
IL Geneva city
IL Geneva township
IL Gilberts village
IL Glen Carbon village
IL Glen Ellyn village
IL Glencoe village
IL Glendale Heights village
IL Glenview village
IL Glenwood village
IL Godfrey township
IL Golf village
IL Grafton township
IL Grandview village
IL Granite City city
IL Grant township
IL Grayslake village
IL Green Oaks village
IL Green Rock city
IL Groveland township
IL Gurnee village
IL Hainesv'ille village
IL Hampton township
IL Hampton village
IL H.mna township
IL Hanover Park village
IL Hanover township
IL Harlem township
IL Hamstown township
IL Harnstown village
IL Hartford village
IL Harvey city
IL Harwood Heights village
IL Hawthorn Woods village
IL Hazel Crest village
IL Henry County
IL Hensley township
IL Hickory Hills city
IL Hickory Point township
IL Highland Park city
IL Highwood city
IL Hillside village
IL Hinsdale village
IL Hodgkins village
IL Hoffman Estates village
IL Hollis township
IL Homer township
IL Hometown city
IL Homewood village
IL Indian Creek village
IL Indian Head Park village
IL Inverness village
IL Itasca village
IL Jarvis township
IL Jerome village
IL Jo Daviess County
IL Joliet city
IL Joliet township
IL Justice village
IL Kane County
IL Kankakee city
IL Kankakee County
IL Kankakee township
IL Kendall County
IL Kenilworth village
IL Kickapoo township
IL Kildeer village
IL La Grange Park village
IL La Grange village
IL Lake Harrington village
IL Lake Bluff village
IL Lake Forest city
IL Lake in the Hills village
IL Lake Villa township
IL Lake Villa village
IL Lake Zurich village
IL Lakemoor village
IL Lakewood village
IL Lansing village
IL Leland Grove city
IL Lemont township
IL Leyden township
IL Libertyville township
IL Libertyville village
IL Limestone township
IL Lincolnshire village
IL Lincolnwood village
IL Lindenhurst village
IL Lisle township
IL Lisle village
IL Lockport city
IL Lockport township
IL Lombard village
IL Long Creek township
IL Long Grove village
IL Loves Park city
IL Lynwood village
IL Lyons township
IL Lyons village
IL Machesney Park village
IL Macon County
IL Madison city
IL Madison County
IL Maine township
IL Markham city
IL Marquette Heights city
IL Maryville village
IL Matteson village
IL Maywood village
IL McCook village
IL McCullom Lake village
IL McHenry city
IL McHenry County
IL McHenry township
IL McLean County
IL Medina township
IL Melrose Park village
IL Merrionette Park village
IL Midlothian village
IL Milan village
IL Milton township
IL Moline city
IL Moline township
IL Monee township
IL Monroe County
IL Montgomery village
IL Moro township
IL Morton Grove village
IL Morton township
IL Morton village
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68816 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
IL Mount Prospect village
IL Mount Zion township
IL Mount Zion village
IL Mundelein village
IL Nameoki township
IL Naperville city
IL Naperville township
IL National City village
IL New Lenox township
IL New Lenox village
IL New Millford village
IL New Trier township
IL Newport township
IL Niles township
IL Niles village
IL Normal town
IL Normal township
IL Norridge village
IL North Aurora village
IL North Harrington village
IL North Chicago city
IL North Pekin village
IL North Riverside village
IL Northbrook village
IL Northfield township
IL Northfield village
IL Northlake city
IL Norwood Park township
IL Norwood village
IL Nunda township
IL Oak Brook village
IL Oak Forest city
IL Oak Grove village
IL Oak Lawn village
IL Oak Park village
IL Oakbrook Terrace city
IL Oakley township
IL Oakwood Hills village
IL O'Fallon city
IL O'Fallon township
IL Olympia Fields village
IL Orland Hills village
IL Orland Park village
IL Orland township
IL Oswego township
IL Oswego village
IL Otto township
IL Owen township
IL Palatine township
IL Palatine village
IL Palos Heights city
IL Palos Hills city
IL Palos Park village
IL Palos township
IL Park City city
IL Park Forest village
IL Park Ridge city
IL Pekin city
IL Pekin township
IL Peoria city
IL Peoria County
IL Peoria Heights village
IL Phoenix village
IL Pin Oak township
IL Plainfield township
IL Plainfield village
IL Pontoon Beach village
IL Posen village
IL Precinct 10
IL Prospect Heights city
IL Proviso township
IL Rich township
IL Richton Park village
IL Richwoods township
IL River Forest village
IL River Grove village
IL Riverdale village
IL Riverside township
IL Riverside village
IL Riverwoods village
IL Robbins village
IL Rochester township
IL Rock Island city
IL Rock Island County
IL Rock Island township
IL Rockdale village
IL Rockford township
IL Rockton township
IL Rockton village
IL Rolling Meadows city
IL Romeoville village
IL Roscoe township
IL Roscoe village
IL Roselle village
IL Rosemont village
IL Round Lake Beach village
IL Round Lake Heights village
IL Round Lake Park village
IL Round Lake village
IL Roxana village
IL Rutland township
IL Sangamon County
IL Sauget village
IL Sauk Village village
IL Savoy village
IL Schaumburg township
IL Schaumburg village
IL Schiller Park village
IL Shields township
IL Shiloh Valley township
IL Shiloh village
IL Shorewood village
IL Silvis city
IL Skokie village
IL Sleepy Hollow village
IL Somer township
IL South Beloit city
IL South Chicago Heights village
IL South Elgin village
IL South Holland village
IL South Moline township
IL South Rock Island township
IL South Roxana village
IL South Wheatland township
IL Southern View village
IL Spring Bay township
IL Springfield city
IL Springfield township
IL St. Charles city
IL St. Charles township
IL St. Clair County
IL St. Clair township
IL Steger village
IL Stickney township
IL Stickney village
IL Stites township
IL Stone Park village
IL Stookey township
IL Streamwood village
IL Sugar Grove township
IL Sugar Loaf township
IL Summit village
IL Sunnyside village
IL Swansea village
IL Tazewell County
IL Thornton township
IL Thornton village
IL Tinley Park village
IL Tolono township
IL Tower Lakes village
IL Tremont township
IL Troy city
IL Troy township
IL University Park village
IL Urbana city
IL Urbana township
IL Venice city
IL Venice township
IL Vernon Hills village
IL Vernon township
IL Villa Park village
IL Warren township
IL Warrenville city
IL Washington city
IL Washington Park village
IL Washington township
IL Wauconda township
IL Waukegan city
IL Waukegan township
IL Wayne township
IL West Chicago city
IL West Deerfield township
IL West Dundee village
IL West Peoria township
IL Westchester village
IL Western Springs village
IL Westmont village
IL Wheatland township
IL Wheaton city
IL Wheeling township
IL Wheeling village
IL Whitmore township
IL Will County
IL Willow Springs village
IL Willowbrook village
IL Wilmette village
IL Winfield township
IL Winfield village
IL Winnebago County
IL Winnetka village
IL Winthrop Harbor village
IL Wood Dale city
IL Wood River city
IL Wood River township
IL Woodford County
IL Woodridge village
IL Woodside township
IL Worth township
IL Worth village
IL York township
IL Zion city
IN Aboite township
IN Adams township
IN Allen County
IN Anderson city
IN Anderson township
IN Baugo township
IN Beech Grove city
IN Bloomington city
IN Bloomington township
IN Boone County
IN Buck Creek township
IN Calumet township
IN Carmel city
IN Castleton town
IN Cedar Creek township
IN Center township
IN Centre township
IN Chesterfield town
IN Chesterton town
IN Clark County
IN Clarksville town
IN Clay township
IN Clermont town
IN Cleveland township
IN Concord township
IN Country Club Heights town
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Federal Register/VoI. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68817
IN Crown Point city
IN Crows Nest town
IN Cumberland town
IN Daleville town
IN Delaware County
IN Delaware township
IN Dyer town
IN Eagle township
IN East Chicago city
IN Edgewood town
IN Elkhart city
IN Elkhart County
IN Elkhart township
IN Evansville city
IN Fairfield township
IN Fall Creek township
IN Fishers town
IN Floyd County
IN Fort Wayne city
IN Franklin township
IN Gary city
IN German township
IN Goshen city
IN Greenwood city
IN Griffith town
IN Hamilton County
IN Hamilton township
IN Hammond city
IN Hancock County
IN Hanover township
IN Harris township
IN Harrison township
IN Hendricks County
IN Highland town
IN Hobart city
IN Hobart township
IN Homecraft town
IN Honey Creek township
IN Howard County
IN Howard township
IN Indian Village town
IN Jackson township
IN Jefferson township
IN Jeffersonville city
IN Jeffersonville township
IN Johnson County
IN Knight township
IN Kokomo city
IN Lafayette city
IN Lafayette township
IN Lake County
IN Lake Station city
IN Lawrence city
IN Lawrence township
IN Liberty township
IN Lincoln township
IN Lost Creek township
IN Madison County
IN Meridian Hills t'own
IN Merrillville town
IN Mishawaka city
IN Monroe County
IN Mount Pleasant township
IN Muncie city
IN Munster town
IN New Albany city
IN New Albany township
IN Ne\v Chicago town
IN New Haven city
IN New Whiteland town
IN Newburgh town
IN North Crows Nest town
IN North township
IN Ogden Dunes town
IN Ohio township
IN Osceola town
IN Osolo township
IN Otter Creek township
IN Penn township
IN Perry township
IN Pigeon township
IN Pike township
IN Pleasant township
IN Portage city
IN Portage township
IN Porter County
IN Porter town
IN Richland township
IN Riley township
IN River Forest town
IN Rocky Ripple town
IN Roseland town
IN Ross township
IN Salem township
IN Schererville town
IN Seelyville town
IN Sellersburg town
IN Selma town
IN Silver Creek township
IN South Bend city
IN Southport city
IN Speedway town
IN Spring Hill town
IN St. John town
IN St. John township
IN St. Joseph County
IN St. Joseph township
IN Sugar Creek township
IN Taylor township
IN Terre Haute city
IN Tippecanoe County
IN Tippecanoe township
IN Union township
IN Utica township
IN Van Buren township
IN Vanderburgh County
IN Vigo County
IN Wabash township
IN Warren Park town
IN Warren township
IN Warrick County
IN Washington township
IN Wayne township
IN Wea township
IN West Lafayette city
IN West Terre Haute town
IN Westchester township
IN Westfield town
IN White River township
IN Whiteland town
IN Whiting city
IN Williams Creek town
IN Woodlawn Heights town
IN Wynnedale town
IN Yorktown town
IN Zionsville town
KS Attica township
KS Bel Aire city
KS Countryside city
KS Delano township
KS Doniphan County
KS Douglas County
KS Eastborough city
KS Elwood city
KS Fairway city
KS Gypsum township
KS Haysville city
KS Johnson County
KS Kechi city
KS Kechi township
KS Lake Quivira city
KS Lawrence city
KS Leawood city
KS Lenexa city
KS Merriam city
KS Minneha township
KS Mission city
KS Mission Hills city
KS Mission township
KS Mission Woods city
KS Monticello township
KS Ohio township
KS Olathe city
KS Olathe township
KS Park City city
KS Park township
KS Prairie Village city
KS Riverside township
KS Roeland Park city
KS Salem township
KS Sedgwick County
KS Shawnee city
KS Shawnee County
KS Shawnee township
KS Soldier township
KS Tecumseh township
KS Topeka township
KS Waco township
KS Wakarusa township
KS Washington township
KS Westwood city
KS Westwood Hills city
KS Williamsport township
KS Wyandotte County
KY AJexandria city
KY Ashland city
KY Bellefonte city
KY Bellevue city
KY Boone County
KY Boyd County
KY Bromley city
KY Bullitt County
KY Campbell County
KY Catlettsburg city
KY Christian County
KY Covington city
KY Crescent Park city
KY Crescent Springs city
KY Crestview city
KY Crestview Hills city
KY Daviess County
KY Dayton city
KY Edgewood city
KY Elsmere city
KY Erlanger city
KY Fairview city
KY Flatwoods city
KY Florence city
KY Forest Hills city
KY Fort Mitchell city
KY Fort Thomas city
KY Fort Wright city
KY Fox Chase city
KY Greenup County
KY Hebron Estates city
KY Henderson city
KY Henderson County
KY Highland Heights city
KY Hillview city
KY Hunters Hollow city
KY Independence city
KY Jessamine County
KY Kenton County
KY Kenton Vale city
KY Lakeside Park city
KY Latonia Lakes city
KY Ludlow city
KY Melbourne city
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68818 Federal Register / Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
KY Newport city
KY Oak Grove city
KY Owensboro city
KY Park Hills city
KY Pioneer Village city
KY Raceland city
KY Russell city
KY Silver Grove city
KY Southgate city
KY Taylor Mill city
KY Villa Hills city
KY Wilder city
KY Woodlawn city
KY Wurtland city
LA Alexandria city
LA Baker city
LA Ball town
LA Bossier City city
LA Bossier Parish
LA Broussard town
LA Caddo Parish
LA Calcasieu Parish
LA Carencro city
LA Denham Springs city
LA Houma city
LA Lafayette city
LA Lafayette Parish
LA Lafourche Parish
LA Lake Charles city
LA Livingston Parish
LA Monroe city
LA Ouachita Parish
LA Pineville city
LA Plaquemines Parish
LA Port Allen city
LA Rapides Parish
LA Richwood town
LA Scott town
LA Slidell city
LA St. Bernard Parish
LA St. Charles Parish
LA St. Tammany Parish
LA Sulphur city
LA Terrebonne Parish
LA West Baton Rouge Parish
LA West Monroe city
LA Westlake city
LA Zachary city
MA Abington town
MA Acton town
MA Acushnet town
MA Agawam town
MA Amesbury town
MA Andover town
MA Arlington town
MA Ashland town
MA Attleboro city
MA Auburn town
MA Avon town
MA Barnstable County
MA Barnstable town
MA Bedford town
MA Bellingham town
MA Belmont town
MA Berkshire County
MA Beverly city
MA Billerica town
MA Blackstone town
MA Boxborough town
MA Boylston town
MA Braintree town
MA Bridgewater town
MA Bristol County
MA Brockton city
MA Brookline town
MA Burlington town
MA Cambridge city
MA Canton town
MA Charlton town
MA Chelmsford town
MA Chelsea city
MA Chicopee city
MA Cohasset town
MA Concord town
MA Dalton town
MA Danvers town
MA Dartmouth town
MA Dedham town
MA Dennis town
MA Dighton town
MA Dover town
MA Dracut town
MA Dudley town
MA East Bridgewater town
MA East Longmeadow town
MA Easthampton town
MA Easton town
MA Essex County
MA Essex town
MA Everett city
MA Fairhaven town
MA Fall River city
MA Fitchburg city
MA Foxborough town
MA Framingham town
MA Franklin town
MA Freetown town
MA Georgetown town
MA Gloucester city
MA Grafton town
MA Granby town
MA Groton town
MA Groveland town
MA Hadley town
MA Halifax town
MA Hamilton town
MA Hampden County
MA Hampden town
MA Hampshire County
MA Hanover town
MA Hanson town
MA Haverhill city
MA Hingham town
MA Hinsdale town
MA Holbrook town
MA Holden town
MA Holliston town
MA Hoiyoke city
MA Hudson town
MA Hull town
MA Lanesborough town
MA Lawrence city
MA Leicester town
MA Leominster city
MA Lexington town
MA Lincoln town
MA Littleton town
MA Longmeadow town
MA Lowell city
MA Ludlow town
MA Lunenburg town
MA Lynn city
MA Lynnfield town
MA Maiden city
MA Manchester town
MA Mansfield town
MA Marblehead town
MA Marlborough city
MA Mashpee town
MA Maynard town
MA Medfield town
MA Medford city
MA Medway town
MA Melrose city
MA Merrimac town
MA Methuen town
MA Middlesex County
MA Middleton town
MA Millbury town
MA Millis town
MA Millville town
MA Milton town
MA Nahant town
MA Natick town
MA Needham town
MA New Bedford city
MA Newton city
MA Norfolk town
MA North Andover town
MA North Attleborough town
MA North Reading town
MA Northampton city
MA Northborough town
MA Northbridge town
MA Norton town
MA Norwell town
MA Norwood town
MA Oxford town
MA Paxton town
MA Peabody city
MA Pembroke town
MA Pittsfield city
MA Plainville town
MA Plymouth County
MA Quincy city
MA Randolph town
MA Raynham town
MA Reading town
MA Rehoboth town
MA Revere city
MA Rockland town
MA Rockport town
MA Salem city
MA Sandwich town
MA Saugus town
MA Scituate town
MA Seekonk town
MA Sharon town
MA Shrewsbury town
MA Somerset town
MA Somerville city
MA South Hadley town
MA Southampton town
MA Southborough town
MA Southwick town
MA Springfield city
MA Stoneham town
MA Stoughton town
MA Stow town
MA Sudbury town
MA Sutton town
MA Swampscott town
MA Swansea town
MA Taunton city
MA Tewksbury town
MA Tyngsborough town
MA Uxbridge town
MA Wakefield town
MA Walpole town
MA Waltham city
MA Watertown town
MA Wayland town
MA Webster town
MA Wellesley town
MA Wenham town
MA West Boylston town
MA West Bridgewater town
MA West Springfield town
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68819
MA Westborough town
MA Westfield city
MA Westford town
MA Westminster town
MA Weston town
MA Westport town
MA Westwood town
MA Weymouth town
MA Whitman town
MA Wilbraham town
MA Williamsburg town
MA Wilmington town
MA Winchester town
MA Winthrop town
MA Woburn city
MA Worcester County
MA Wrentham town
MA Yarmouth town
MD Allegany County
MO Annapolis city
MD Bel Air town
MD Berwyn Heights town
MD Bladensburg town
MD Bowie city
MD Brentwood town
MD Brookeville town
MD Capitol Heights town '
MD Cecil County
MD Cheverly town
MD Chevy Chase Section Five village
MD Chevy Chase Section Three village
MD Chevy Chase town
MD Chevy Chase Village town
MD College Park city
MD Colmar Manor town
MD Cottage City town
MD Cumberland city
MD District Heights city
MD Edmonston town
MD Elkton town
MD Fairmount Heights town
MD Forest Heights town
MD Frederick city
MD Frostburg city
MD Funkstown town
MD Gaithersburg city
MD Garrett Park town
MD Glen Echo town
MD Glenarden town
MD Greenbelt city
MD Hagerstown city
MD Highland Beach town
MD Hyattsville city
MD Kensington town
MD Londover Hills town
MD Laurel city
MD Martin's Additions village
MD Morningside town
MD Mount Rainier city
MD New Carrollton city
MD North Brentwood town
MD Riverdale town
MD Rockville city
MD Seat Pleasant city
MD Smithsburg town
MD Somerset town
MD Takoma Park city
MD University Park town
MD Walkersville town
MD Washington Grove town
MD Williamsport town
ME Androscoggin County
ME Auburn city
ME Bangor city
ME Berwick town
ME Brewer city
ME Cape Elizabeth town
ME Cumberland County
ME Eliot town
ME Falmouth town
ME Gorham town
ME Kittery town
ME Lebanon town
ME Lewiston city
ME Lisbon town
ME Old Town city
ME Orono town
ME Penobscot County
ME Penobscot Indian Island Reservation
ME Portland city
ME Sabattus town
ME Scarborough town
ME South Berwick town
ME South Portland city
ME Veazie town
ME Westbrook city
ME York County
MI Ada township
MI Allegan County
MI Allen Park city
MI Alpine township
MI Ann Arbor township
MI Auburn Hills city
MI Bangor township
MI Bath township
MI Battle Creek city
MI Bay City city
MI Bay County
MI Bedford township
MI Belleville city
MI Benton Charter township
MI Benton Harbor city
MI Berkley city
MI Berlin township
MI Berrien County
MI Beverly Hills village
MI Bingham Farms village
MI Birmingham city
MI Blackman township
MI Bloomfield Hills city
MI Bloomfield township
MI Bridgeport township
MI Brownstown township
MI Buena Vista Charter township
MI Burtchville township
MI Burton city
MI Byron township
MI Calhoun County
MI Canton township
MI Carrollton township
MI Cascade township
MI Cass County
MI Center Line city
MI Chesterfield township
MI Clarkston village
MI Clawson city
MI Clay township
MI Clayton township
MI Clinton County
MI Clinton township
MI Clio city
MI Clyde township
MI Commerce township
MI Comstock township
MI Cooper township
MI Dalton township
MI Davison city
MI Davison township
MI De Witt township
MI Dearborn city
MI Dearborn Heights city
MI Delhi Charter township
MI Delta township
MI Detroit city
MI East China township
MI East Detroit city
MI East Grand Rapids city
MI East Lansing city
MI Eaton County
MI Ecorse city
MI Emmett township
MI Erie township
MI Essexville city
MI Farmington city
MI Farmington Hills city
MI Ferndale city
MI Fillmore township
MI Flat Rock city
MI Flint township
MI Flushing city
MI Flushing township
MI Fort Gratiot township
MI Frankenlust township
MI Franklin village
MI Fraser city
MI Fruitport township
MI Gaines township
MI Garden City city
MI Genesee County
MI Genesee township
MI Georgetown township
MI Gibraltar city
MI Grand Blanc city
MI Grand Blanc township
MI Grand Rapids Charter township
MI Grandville city
MI Grosse He township
MI Grosse Pointe city
MI Grosse Pointe Farms city
MI Grosse Pointe Park city
MI Grosse Pointe Shores village
MI Grosse Pointe Woods city
MI Hampton township
MI Hamtramck city
MI Harper Woods city
MI Harrison township
MI Hazel Park city
MI Highland Park city
MI Highland township
MI Holland city
MI Holland township
MI Howard township
MI Hudsonville city
MI Huntington Woods city
MI Huron township
MI Independence township
MI Ingham County
MI Inkster city
MI Ira township
MI Jackson city
MI Jackson County
MI James township
MI Kalamazoo city
MI Kalamazoo County
MI Kalamazoo township
MI Keego Harbor city
MI Kent County
MI Kentwood city
MI Kimball township
MI Kochville township
MI Lake Angelus city
MI Laketon township
MI Laketown township
MI Lansing city
MI Lansing township
MI Lathrup Village city
MI Leoni township
MI Lincoln Park city
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6882O Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
MI Lincoln township
MI Livonia city
MI Macomb County
MI Macomb township
MI Madison Heights city
MI Marysville city
MI Melvindale city
MI Meridian township
MI Milford township
MI Milton township
MI Monitor township
MI Monroe County
MI Mount Clemens city
MI Mount Morris city
MI Mount Morris township
MI Mundy township
MI Muskegon city
MI Muskegon County
MI Muskegon Heights city
MI Muskegon township
MI New Baltimore city
- MI Niles city
MI Niles township
MI North Muskegon city
MI Northville city
MI Northville township
MI Norton Shores city
MI Novi city
MI Novi township
MI Oak Park city
MI Oakland Charter township
MI Oakland County
MI Orchard Lake Village city
MI Orion township
MI Oshtemo township
MI Ottawa County
MI Parchment city
MI Park township
MI Pavilion township
MI Pennfield township
MI Pittsfield township
MI Plainfield township
MI Pleasant Ridge city
MI Plymouth city
MI Plymouth township
MI Pontiac city
MI Port Huron city
MI Port Huron township
MI Portage city
MI Portsmouth township
MI Redford township
MI Richfield township
MI River Rouge city
MI Riverview city
MI Rochester city
MI Rochester Hills city
MI Rockwood city
MI Romulus city
MI Roosevelt Park city
MI Roseville city
MI Ross township
MI Royal Oak city
MI Royal Oak township
MI Saginaw city
MI Saginaw County
MI Saginaw township
MI Schoolcraft township
MI Scio township
MI Shelby township
MI Shoreham village
MI Sodus township
MI South Rockwood village
MI Southfield city
MI Southfield township
MI Southgate city
MI Spaulding township
MI Spring Arbor township
MI Springfield city
MI Springfield township
MI St. Clair city
MI St. Clair County
MI St. Clair Shores city
MI St. Clair township
MI St. Joseph Charter township
MI St. Joseph city
MI Stevensville village
MI Sullivan township
MI Summit township
MI Sumpter township
MI Superior township
MI Swartz Creek city
MI Sylvan Lake city
MI Taylor city
MI Texas township
MI Thetford township
MI Thomas township
MI Trenton city
MI Troy city
MI Utica city
MI Van Buren township
MI Vienna township
MI Walker city
MI Walled Lake city
MI Washington township
MI Washtenaw County
MI Waterford township
MI Wayne city
MI West Bloomfield township
MI Westland city
MI White Lake township
MI Whiteford township
MI Williamstown township
MI Wixom city
MI Wolverine Lake village
MI Woodhaven city
MI Wyandotte city
MI Wyoming city
MI Ypsilanti city
MI Ypsilanti township
MI Zeeland city
MI Zilwaukee city
MN Andover city
MN Anoka city
MN Anoka County
MN Apple Valley city
MN Arden Hills city
MN Benton County
MN Birchwood Village city
MN Elaine city
MN Bloomington city
MN Brooklyn Center city
MN Brooklyn Park city
MN Burnsville city
MN Carver County
MN Cascade township
MN Champlin city
MN Chanhassen city
MN Circle Pines city
MN Clay County
MN Coon Rapids city
MN Cottage Grove city
MN Credit River township
MN Crystal city
MN Dakota County
MN Dayton city
MN Deephaven city
MN Dilworth city
MN Duluth city
MN Eagan city
MN East Grand Forks city
MN Eden Prairie city
MN Excelsior city
MN Falcon Heights city
MN Farmington city
MN Fort Snelling unorg.
MN Fridley city
MN Gem Lake city
MN Golden Valley city
MN Grant township
MN Greenwood city
MN Ham Lake city
MN Haven township
MN Hennepin County
MN Hermantown city
MN Hilltop city
MN Hopkins city
MN Houston County
MN Inver Grove Heights city
MN La Crescent city
MN La Crescent township
MN Lake Elmo city
MN Lakeville city
MN Landfall city
MN Lauderdale city
MN Le Sauk township
MN Lexington city
MN Lilydale city
MN Lino Lakes city
MN Little Canada city
MN Long Lake city
MN Loretto city
MN Mahtomedi city
MN Maple Grove city
MN Maple Plain city
MN Maplewood city
MN Marion township
MN Medicine Lake city
MN Medina city
MN Mendota city
MN Mendota Heights city
MN Midway township
MN Minden township
MN Minnetonka Beach city
MN Minnetonka city
MN Minnetrista city
MN Moorhead city
MN Moorhead township
MN Mound city
MN Mounds View city
MN New Brighton city
MN New Hope city
MN Newport city
MN North Oaks city
MN North St. Paul city
MN Oakdale city
MN Oakport township
MN Olmsted County
MN Orono city
MN Osseo city
MN Plymouth city
MN Po'lk County
MN Prior Lake city
MN Proctor city
MN Ramsey city
MN Robbinsdale city
MN Rochester city
MN Rochester township
MN Rosemount city
MN Roseville city
MN Sartell city
MN Sauk Rapids city
MN Sauk Rapids township
MN Savage city
MN Scott County
MN Sherburne County
MN Shoreview city
MN Shorewood city
MN South St. Paul city
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 6882ll
MN Spring Lake Park city
MN Spring Park city
MN St. Anthony city
MN St. Cloud city
MN St. Cloud township
MN St. Louis County
MN St. Paul Park city
MN Stearns County •
MN Sunfish Lake city
MN Tonka Bay city
MN Vadnais Heights city
MN Victoria city
MN Waite Park city
MN Washington County
MN Wayzata city
MN West St. Paul city
MN White Bear Lake city
MN White Bear township
MN Willernie city
MN Woodbury city
MN Woodland city
MN Wright County
MO Airport Drive village
MO Airport township
MO Andrew County
MO Arnold city
MO Avondale city
MO Ballwin city
MO Battlefield town
MO Bella Villa city
MO Bellefontaine Neighbors city
MO Bellerive village
MO Bel-Nor village
MO Bel-Ridge village
MO Belton city
MO Berkeley city
MO Beverly Hills city
MO Big Creek township
MO Birmingham village
MO Black Jack city
MO Blanchette township
MO Blue Springs city
MO Blue township
MO Bonhomme township
MO Boone County
MO Boone township
MO Breckenridge Hills village
MO Brentwood city
MO Bridgeton city
MO Brooking township
MO Buchanan County
MO Calverton Park village
MO Campbell No. 1 township
MO Campbell No. 2 township
MO Carl Junction city
MO Carroll township
MO Carterville city
MO Cass County
MO Cedar township
MO Center township
MO Charlack city
MO Chesterfield city
MO Chouteau township
MO Christian County
MO Clarkson Valley city
MO Clay County
MO Clay township
MO Claycomd village
MO Clayton city
MO Clayton township
MO Cliff Village village
MO Columbia city
MO Columbia township
MO Concord township
MO Cool Valley city
MO Cottleville town
MO Cottleville township
MO Country Club Hills city
MO Country Club village
MO Country Life Acres village
MO Crestwood city
MO Creve Coeur city
MO Creve Coeur township
MO Crystal Lake Park city
MO Dardenne township
MO Dellwood city
MO Dennis Acres village
MO Des Peres city
MO Duquesne village
MO Edmundson village
MO Ellisville city
MO Fenton city
MO Ferguson city
MO Ferguson township
MO Flordell Hills city
MO Florissant city
MO Florissant township
MO Fox township
MO Friedens township
MO Frontenac city
MO Galena township
MO Gallatin township
MO Gladstone city
MO Glen Echo Park village
MO Glenaire village
MO Glendale city
MO Grand view city
MO Grantwood Village town
MO Gravois township
MO Greendale city
MO Greene County
MO Hadley township
MO Hanley Hills village
MO Harvester township
MO Hazelwood city
MO High Ridge township
MO Hillsdale village
MO Houston Lake city
MO Huntleigh city
MO Imperial township
MO Iron Gates village
MO Jackson County
MO Jasper County
MO Jefferson County
MO Jefferson township
MO Jennings city
MO joplin city
MO Joplin township
MO Kickapoo township
MO Kimmswick city
MO Kinloch city
MO Kirkwood city
MO Ladue city
MO Lake St. Louis city
MO Lake Tapawingo city
MO Lake Waukomis city
MO Lakeshire city
MO Leawood village
MO Lee's Summit city
MO Lemay township
MO Lewis and Clark township
MO Liberty city
MO Liberty township
MO Mac Kenzie village
MO Manchester city
MO Maplewood city
MO Marlborough village
MO Maryland Heights city
MO May township
MO Meramec township
MO Midland township
MO Mineral township
MO Missouri River township
MO Missouri township
MO Moline Acres city
MO Mount Pleasant township
MO Newton County
MO Normandy city
MO Normandy township
MO North Campbell No. 1 township
MO North Campbell No. 2 township
MO North Campbell No. 3 township
MO North Kansas City city
MO North View township
MO Northmoor city
MO Northwest township
MO Northwoods city
MO Norwood Court town
MO Oakland city
MO Oakland Park village
MO Oaks village
MO Oakview village
MO Oakwood Park village
MO Oakwood village
MO O'Fallon city
MO O'Fallon township
MO Olivette city
MO Overland city
MO Pagedale city
MO Parkdale town
MO Parkville city
MO Pasadena Hills city
MO Pasadena Park village
MO Pettis township
MO Pine Lawn city
MO Platte County
MO Platte township
MO Platte Woods city
MO Pleasant Valley city
MO Prairie township
MO Queeny township
MO Randolph village
MO Raymore city
MO Raymore township
MO Raytown city
MO Redings Mill village
MO Richmond Heights city
MO Rivers township
MO Riverside city
MO Riverview village
MO Rock Hill city
MO Rock township
MO Rocky Fork township
MO Saginaw village
MO Shoal Creek Drive village
MO Shoal Creek township
MO Shrewsbury city
MO Silver Creek village
MO Sioux township
MO Sni-A-Bar township
MO Spanish Lake township
MO Spencer Creek township
MO St. Ann city
MO St. Charles city
MO St. Ferdinand township
MO St. George city
MO St. John city
MO St. Joseph city
MO St. Louis city
MO St. Peters city
MO St. Peters township
MO Sugar Creek city
MO Sunset Hills city
MO Sycamore Hills village
MO Town and Country city
MO Twin Groves township
MO Twin Oaks village
MO Unity Village village
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68822 Federal Register / Vol. 64, No. 235/Wednesday, December 8, 1999/Ru]es and Regulations
MO University City city
MO Uplands Park village
MO Valley Park city
MO Velda Village city
MO Velda Village Hills village
MO Vinita Park city
MO Vinita Terrace village
MO Warson Woods city
MO Washington township
MO Wayne township
MO Weatherby Lake city
MO Webb City city
MO Webster Groves city
MO Wellston city
MO Wentzville township
MO Westwood village
MO Wilbur Park village
MO Wilson township
MO Winchester city
MO Windsor township
MO Woodson Terrace city
MO Zumbehl township
MS Bay St. Louis city
MS Biloxi city
MS Brandon city
MS Clinton city
MS DeSoto County
MS D'lberville city
MS Flowood town
MS Forrest County
MS Gautier city
MS Gulfport city
MS Hancock County
MS Harrison County
MS Hattiesburg city
MS Hinds County
MS Horn Lake city
MS Jackson County
MS Lamar County
MS Long Beach city
MS Madison city
MS Madison County
MS Moss Point city
MS Ocean Springs city
MS Pascagoula city
MS Pass Christian city
MS Pearl city
MS Petal city
MS Rankin County
MS Richland city
MS Ridgeland city
MS Southaven city
MS Waveland city
MT Billings city
MT Cascade County
MT Great Falls city
MT Missoula city
MT Missoula County
MT Yellowstone County
NC Alamance County
NC Apex town
NC Archdale city
NC Asheville city
NC Belmont city
NC Belville town
NC Bessemer City city
NC Biltmore Forest town
NC Black Mountain town
NC Brookford town
NC Brunswick County
NC Buncombe County
NC Burke County
NC Burlington city
NC Cabarrus County
NC Carrboro town
NC Cary town
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
NC
ND
ND
ND
ND
ND
ND
ND
ND
Catawba County
Chapel Hill town
China Grove town
Clemmons village
Concord city
Conover city
Cramerton town
Dallas town
Davidson County
Durham County
Edgecombe County
Elon College town
Fletcher town
Forsyth County
Garner town
Gaston County
Gastonia city
Gibsonville town
Goldsboro city
Graham city
Greenville city
Guilford County
Harnett County
Haw River town
Henderson County
Hickory city ,
High Point city
Hildebran town
Hope Mills town
Indian Trail town
Jacksonville city
Jamestown town
Kannapolis city
Landis town
Leland town
Long View town
Lowell city
Matthews town
McAdenville town
Mebane city
Mecklenburg County
Mint Hill town
Montreal town
Mount Holly city
Nash County
New Hanover County
Newton city
Onslow County
Orange County
Pineville town
Pitt County
Randolph County
Ranlo town
Rocky Mount city
Rowan County
Rural Hall town
Spring Lake town
Stallings town
Thomasville city
Union County
Wake County
Walkertown town
Wayne County
Weaverville town
Wilmington city
Winterville town
Woodfin town
Wrightsville Beach town
Barnes township
Bismarck city
Bismarck unorg.
Burleigh County
Captain's Landing township
Cass County
Fargo city
Grand Forks city
ND
ND
ND
ND
ND
ND
ND
ND
ND
NE
.NE
NE
NE
NE
NE
NE
NE
NE
NE
NE
NE
NE
NE
NE
NE
NE
NE
NE
NE
NE
NE
NE
NE
NE
NE
NE
NE
NE
NE
NE
NE
NE
NE
NE
NH
NH
NH
NH
NH
NH
NH
NH
NH
NH
NH
NH
NH
NH
NH
NH
NH
NH
NH
NH
NH
NH
NH
NH
NH
NH
NH
NH
NH
NH
NJ
NJ
Grand Forks County
Grand Forks township
Hay Creek township
Lincoln city
Mandan city
Mandan unorg.
Morton County
Reed township
West Fargo city
Bellevue city
Bellevue No. 2 precinct
Benson precinct
Boys Town village
Chicago precinct
Covington precinct
Dakota County
Douglas County
Douglas precinct
Florence precinct
Garfield precinct
Gilmore No. 1 precinct
Gilmore No. 2 precinct
Gilmore No. 3 precinct
Grant precinct
Highland No. 1 precinct
Highland No. 2 precinct
Jefferson precinct
La Platte precinct
La Vista city
Lancaster County
Lancaster precinct
McArdle precinct
Millard precinct
Papillion city
Papillion No. 2 precinct
Pawnee precinct
Ralston city
Richland No. 1 precinct
Richland No. 2 precinct
Richland No. 3 precinct
Sarpy County
South Sioux City city
Union precinct
Yankee Hill precinct
Amherst town
Auburn town
Bedford town
Dover city
Durham town
Goffstown town
Hillsborough County
Hollis town
Hooksett town
Hudson town
Litchfield town
Londonderry town
Madbury town
Manchester city
Merrimack County
Merrimack town
Nashua city
New Castle town
Newington town
Pelham town
Plaistow town
Portsmouth city
Rochester city
Rockingham County
Rollinsford town
Rye town
Salem town
Somersworth city
Strafford County
Windham town
Aberdeen township
Absecon city
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Federal Register/Vol. 64. No. 235/Wednesday, December 8, 1999/Rules and Regulations 6882\
NJ Allendale borough
NJ Allenhurst borough
NJ Alpha borough
NJ Alpine borough
NJ Asbury Park city
NJ Atlantic City city
NJ Atlantic County
NJ Atlantic Highlands borough
NJ Audubon borough
NJ Audubon Park borough
NJ Avon-by-the-Sea borough
NJ Harrington borough
NJ Bay Head borough
NJ Bayonne city
NJ Beach wood borough
NJ Bedminster township
NJ Belleville township
NJ Bellmawr borough
NJ Belmar borough
NJ Bergonfield borough
NJ Berkeley Heights township
NJ Berkeley township
NJ Berlin borough
NJ Berlin township
NJ Bernards township
NJ Bernardsville borough
NJ Beverly city
NJ Bloomfield township
NJ Bloomingdale borough
NJ Bogota borough
NJ Boonton town
NJ Boonton township
NJ Bordentown city
NJ Bordentown township
NJ Bound Brook borough
NJ Bradley Beach borough
NJ Branchburg township
NJ Brick township
NJ Bridgewater township
NJ Brielle borough
NJ Brigantine city
NJ Brooklawn borough
NJ Buena borough
NJ Buena Vista township
NJ Burlington city
NJ Burlington County
NJ Burlington township
NJ Butler borough
NJ Byram township
NJ Caldwell Borough township
NJ Camden city
NJ Cape May County
NJ Carlstadt borough
NJ Carneys Point township
NJ Carteret borough
NJ Cedar Grove township
NJ Chatham borough
NJ Chatham township
NJ Cherry Hill township
NJ Chesilhurst borough
NJ Chester township
NJ Chesterfield township
NJ Cinnarninson township
NJ City of Orange township
NJ Clark township
NJ Clayton borough
NJ Clementon borough
NJ Cliffside Park borough
NJ Clifton city
NJ Closter borough
NJ Collingswood borough
NJ Colts Neck township
NJ Commercial township
NJ Cranford township
NJ Cresskill borough
NJ Cumberland County
NJ Deal borough
NJ Delanco township
NJ Delran township
NJ Demarest borough
NJ Denville township
NJ Deptford township
NJ Dover town
NJ Dover township
NJ Dumont borough
NJ Dunellen borough
NJ East Brunswick township
NJ East Greenwich township
NJ East Hanover township
NJ East Newark borough
NJ East Orange city
NJ East Rutherford borough
NJ Eastampton township
NJ Eatontown borough
NJ Edgewater borough
NJ Edgewater Park township
NJ Edison township
NJ Egg Harbor township
NJ Elizabeth city
NJ Elk township
NJ Elmwood Park borough
NJ Emerson borough
NJ Englewood city
NJ Englewood Cliffs borough
NJ Englishtown borough
NJ Essex Fells township
NJ Evesham township
NJ Ewing township
NJ Fair Haven borough
NJ Fair Lawn borough
NJ Fairfield township
NJ Fairview borough
NJ Fanwood borough
NJ Fieldsboro borough
NJ Florence township
NJ Florham Park borough
NJ Fort Lee borough
NJ Franklin Lakes borough
NJ Franklin township
NJ Freehold borough
NJ Freehold township
NJ Galloway township
NJ Garfield city
NJ Garwood borough
NJ Gibbsboro borough
NJ Glassboro borough
NJ Glen Ridge Borough township
NJ Glen Rock borough
NJ Gloucester City city
NJ Gloucester County
NJ Gloucester township
NJ Green Brook township
NJ Greenwich township
NJ Guttenberg town
NJ Hackensack city
NJ Haddon Heights borough
NJ Haddon township
NJ Haddonfield borough
NJ Hainesport township
NJ Haledon borough
NJ Hamilton township
NJ Hanover township
NJ Harding township
NJ Harrington Park borough
NJ Harrison town
NJ Hasbrouck Heights borough
NJ Haworth borough
NJ Hawthorne borough
NJ Hazlet township
NJ Helmetta borough
NJ Highland Park borough
NJ Highlands borough
NJ Hillsborough township
NJ Hillsdale borough
NJ Hillside township
NJ Hi-Nella borough
NJ Hoboken city
NJ Ho-Ho-Kus borough
NJ Holmdel township
NJ Hopatcong borough
NJ Hopewell township
NJ Howell township
NJ Hunterdon County
NJ Interlaken borough
NJ Irvington township
NJ Island Heights borough
NJ Jackson township
NJ Jamesburg borough
NJ Jefferson township
NJ Jersey City city
NJ Keansburg borough
NJ Kearny town
NJ Kenilworth borough
NJ Keyport borough
NJ Kinnelon borough
NJ Lakehurst borough
NJ Lakewood township
NJ Laurel Springs borough
NJ Lavallette borough
NJ Lawnside borough
NJ Lawrence township
NJ Leonia borough
NJ Lincoln Park borough
NJ Linden city
NJ Lindenwold borough
NJ Linwood city
NJ Little Falls township
NJ Little Ferry borough
NJ Little Silver borough
NJ Livingston township
NJ Loch Arbour village
NJ Lodi borough
NJ Long Branch city
NJ Longport borough
NJ Lopatcong township
NJ Lumberton township
NJ Lyndhurst township
NJ Madison borough
NJ Magnolia borough
NJ Mahwah township
NJ Manalapan township
NJ Manasquan borough
NJ Manchester township
NJ Mantoloking borough
NJ Mantua township
NJ Manville borough
NJ Maple Shade township
NJ Maplewood township
NJ Margate City city
NJ Marlboro township
NJ Matawan borough
NJ Maywood borough
NJ Medford Lakes borough
NJ Medford township
NJ Mendham borough
NJ Mendham township
NJ Mercer County
NJ Merchantville borough
NJ Metuchen borough
NJ Middlesex borough
NJ Middlesex County
NJ Middletown township
NJ Midland Park borough
NJ Millburn township
NJ Millstone borough
NJ Milltown borough
NJ Millville city
NJ Mine Hill township
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NJ Monmouth Beach borough
NJ Monmouth County
NJ Monroe township
NJ Montclair township
NJ Montvale borough
NJ Montville township
NJ Moonachie borough
NJ Moorestown township
NJ Morris County
NJ Morris Plains borough
NJ Morris township
NJ Morristown town
NJ Mount Arlington borough
NJ Mount Ephraim borough
NJ Mount Holly township
NJ Mount Laurel township
NJ Mount Olive township
NJ Mountain Lakes borough
NJ Mountainside borough
NJ National Park borough
NJ Neptune City borough
NJ Neptune township
NJ Netcong borough
NJ New Brunswick city
NJ New Milford borough
NJ New Providence borough
NJ Newark city
NJ Newfield borough
NJ North Arlington borough
NJ North Bergen, township
NJ North Brunswick township
NJ North Caldwell township
NJ North Haledon borough
NJ North Plainfield borough
NJ Northfield city
NJ Northvale borough
NJ Norwood borough
NJ Nutley township
NJ Oakland borough
NJ Oaklyn borough
NJ Ocean City city
NJ Ocean County
NJ Ocean Gate borough
NJ Ocean township
NJ Oceanport borough
NJ Old Bridge township
NJ Old Tappan borough
NJ Oradell borough
NJ Palisades Park borough
NJ Palmyra borough
NJ. Paramus borough-
NJ Park Ridge borough
NJ Parsippany-Troy Hills township
NJ Passaic city
NJ Passaic County
NJ Passaic township
NJ Paterson city
NJ Paulsboro borough
NJ Pennington borough
NJ Penns Grove borough
NJ Pennsauken township
NJ Pennsville township
NJ Pequannock township
NJ Perth Amboy city
NJ Phillipsburg town
NJ Pine Beach borough
NJ Pine Hill borough
NJ Pine Valley borough
NJ Piscataway township
NJ Pitman borough
NJ Pittsgrove township
NJ Plainfield city
NJ Pleasantville city
NJ Pohatcong township
NJ Point Pleasant Beach borough
NJ Point Pleasant borough
NJ Pompton Lakes borough
NJ Prospect Park borough
NJ Rahway city
NJ Ramsey borough
NJ Randolph township
NJ Raritan borough
NJ Readington township
NJ Red Bank borough
NJ Ridgefield borough
NJ Ridgefield Park village
NJ Ridgewood village
NJ Ringwood borough
NJ River Edge borough
NJ River Vale township
NJ Riverdale borough
NJ Riverside township
NJ Riverton borough
NJ Rochelle Park township
NJ Rockaway borough
NJ Rockaway township
NJ Rockleigh borough
NJ Roseland borough
NJ Roselle borough
NJ Roselle Park borough
NJ Roxbury township
NJ Rumson borough
NJ Runnemede borough
NJ Rutherford borough
NJ Saddle Brook township
NJ Saddle River borough
NJ Salem County
NJ Sayreville borough
NJ Scotch Plains township
NJ Sea Bright borough
NJ Sea Girt borough
NJ Seaside Heights borough
N) Seaside Park borough
NJ Secaucus town
NJ Shamong township
NJ Shrewsbury borough
NJ Shrewsbury township
N| Somerdale borough
NJ Somers Point city
NJ Somerset County
N'l Somerville borough
NJ South Amboy city
Nl South Belmar borough
Nl South Bound Brook borough
NJ South Brunswick township
N| South Hackensack township
NJ South Orange Village township
NJ South Plainfield borough
NJ South River borough
NJ South Toms River borough
NJ Spotsvvood borough
NJ Spring Lake borough
NJ Spring Lake Heights borough
NJ Springfield township
NJ Stanhope borough
NJ Stratford borough
NJ Summit city
NJ Sussex County
NJ Tabernacle township
NJ Tavistock borough
NJ Teaneck township
NJ Tenafly borough
NJ Teterboro borough
NJ Tinton Falls borough
NJ Totowa borough
NJ Trenton city
NJ Union Beach borough
NJ Union City city
NJ Union township
NJ Upper Saddle River borough
NJ Upper township
NJ Ventnor City city
NJ Verona township
NJ Victory Gardens borough
NJ Vineland city
NJ Voorhees township
NJ Waldwick borough
NJ Wall township
NJ Wellington borough
NJ Wanaque borough
NJ Warren County
NJ Warren township
NJ Washington township
NJ Watchung borough
NJ Waterford township.
NJ Wayne township
NJ Weehawken township
NJ Wenonah borough
NJ West Caldwell township
NJ West Deptford township
NJ West Long Branch borough
NJ West New York town
NJ West Orange township
NJ West Paterson borough
NJ Westampton township
NJ Westfield town
NJ Westville borough
NJ Westwood borough
NJ Wharton borough
NJ Willingboro township
NJ Winfield township
NJ Winslow township
NJ Woodbridge township
NJ Woodbury city
NJ Woodbury Heights borough
NJ Woodcliff Lake borough
NJ Woodlynne borough
NJ Wood-Ridge borough
NJ Wyckoff township
NM Bernalillo County
NM Corrales village
NM Dona Ana County
NM Las Cruces city
NM Los Ranches de Albuquerque village
NM Mesilla town
NM Rio Rancho city
NM Sandoval County
NM Santa Fe city
NM Santa Fe County
NM Sunland Park city
NY Albany city
NY Albany County
NY Amherst town
NY Amityville village
NY Ardsley village
NY Ashland town
NY Atlantic Beach village
NY Babylon town
NY Babylon village
NY Baldwinsville village
NY Ballston town
NY Barker town
NY Baxter Estates village
NY Bayville village
NY Beacon city
NY Bedford town
NY Belle Terre village
NY Bellerose village
NY Bellport village
NY Bethlehem town
NY Big Flats town
NY Binghamton city
NY Binghamton town
NY Blasdell village
NY Boston town
NY Briarcliff Manor village
NY Brighton town
NY Brightwaters village
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NY Bronxville village
NY Brookhaven town
NY Brookville village
NY Broome County
NY Brunswick town
NY Buchanan village
NY Buffalo city
NY Camillus town
NY Camillus village
NY Carmel town
NY Cayuga Heights village
NY Cedarhurst village
NY Charlton town
NY Cheektowaga town
NY Chomung County
NY Chenango town
NY Chestnut Ridge village
NY Chili town
NY Cicero town
NY Clarence town
NY Cl arks town town
NY Clay town
NY Clayville village
NY Clifton Park town
NY Clinton village
NY Cohoes city
NY Colonie town
NY Colonie village
NY Conklin town
NY Cornwall on Hudson village
NY Cornwall town
NY Cortlandt town
NY Croton-on-Hudson village
NY De Witt town
NY Deerfield town
NY Depew village
NY Dickinson town
NY Dobbs Ferry village
NY Dryden town
NY Dutchess County
NY East Fishkill town
NY East Greenbush town
NY East Hills village
NY East Rochester village
NY East Rockaway village
NY East Syracuse village
NY East Williston village
NY Eastchester town
NY Elma town
NY Elmira city
NY Elmira Heights village
NY Elmira town
NY Elmsford village
NY Endicott village
NY Erie County
NY Evans town
NY Fairport village
NY Farmingdale village
NY Fayetteville village
NY Fenton town
NY Fishkill town
NY Fishkill village
NY Floral Park village
NY Flower Hill village
NY Floyd town
NY Fort Edward town
NY Fort Edward village
NY Frankfort town
NY Freeport village
NY Garden City village
NY Gates town"
NY Geddes town
NY Glen Cove city
NY Glens Falls city
NY Glenville town
NY Grand Island town
NY Grand View-on-Hudson village
NY Great Neck Estates village
NY Great Neck Plaza village
NY Great Neck village
NY Greece town
NY Green Island village
NY Greenburgh town
NY Guilderland town
NY Halfmoon town
NY Hamburg town
NY Hamburg village
NY Harrison village
NY Hastings-on-Hudson village
NY Haverstraw town
NY Haverstraw village
NY Hempstead town
NY Hempstead village
NY Henrietta town
NY Herkimer County
NY Hewlett Bay Park village
NY Hewlett Harbor village
NY Hewlett Neck village
NY Hillburn village
NY Horseheads town
NY Horseheads village
NY Hudson Falls village
NY Huntington Bay village
NY Huntington town
NY Hyde Park town
NY Irondequoit town
NY Irvington village
NY Island Park village
NY Islandia village
NY Islip town
NY Ithaca city
NY Ithaca town
NY Johnson City village
NY Kenmore village
NY Kensington village
NY Kent town
NY Kings Point village
NY Kingsbury town
NY Kirkland'town
NY Kirkwood town
NY La Grange town
NY Lackawanna city
NY LaFayette town'
NY Lake Grove village
NY Lake Success village
NY Lancaster town
NY Lancaster village
NY Lansing town
NY Lansing village
NY Larchmont village
NY Lattingtown village
NY Lawrence village
NY Lee town
NY Lewiston town
NY Lewiston village
NY Lindenhurst village
NY Liverpool village
NY Lloyd Harbor village
NY Lloyd town
NY Long Beach city
NY Lynbrdok village
NY Lysander town
NY Malta town
NY Malverne village
NY Mamaroneck town
NY Mamaroneck village
NY Manlius town
NY Manlius village
NY Manorhaven village
NY Marcy town
NY Massapequa Park village
NY Matinecock village
NY Menands village
NY Mill Neck village
NY Mineola village
NY Minoa village
NY Monroe County
NY Montebello village
NY Montgomery town
NY Moreau town
NY Mount Kisco village
NY Mount Pleasant town
NY Mount Vernon city
NY Munsey Park village
NY Muttontown village
NY New Castle town
NY New Hartford town
NY New Hartford village
NY New Hempstead village
NY New Hyde Park village
NY New Rochelle city
NY New Square village
NY New Windsor town
NY New York Mills village
NY Newburgh city
NY Newburgh town
NY Niagara County
NY Niagara Falls city
NY Niagara town
NY Niskayuna town
NY North Castle town
NY North Greenbush town
NY North Hempstead town
NY North Hills village
NY North Syracuse village
NY North Tarrytown village
NY North Tonawanda city
NY Northport village
NY Nyack village
NY Ogden town
NY Old Brookville village
NY Old Westbury village
NY Oneida County
NY Onondaga County
NY Onondaga town
NY Orange County
NY Orangetown town
NY Orchard Park town
NY Orchard Park village
NY Oriskany village
NY Ossining town
NY Ossining village
NY Oswego County
NY Owego town
NY Oyster Bay town
NY Paris town
NY Patchogue village
NY Patterson town
NY Peekskill city
NY Pelham Manor village
NY Pelham town
NY Pelham village
NY Pendleton town
NY Penfield town
NY Perinton town
NY Philipstown town
NY Phoenix village
NY Piermont village
NY Pittsford town
NY Pittsford village
NY Plandome Heights village
NY Plandome Manor village
NY Plandome village
NY Pleasant Valley town
NY Pleasantville village
NY Poestenkill town
NY Pomona village
NY Poospatuck Reservation
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NY Poquott village
NY Port Chester village
NY Port Dickinson village
NY Port Jefferson village
NY Port Washington North village
NY Poughkeepsie city
NY Poughkeepsie town
NY Pound Ridge town
NY Putnam County
NY Putnam Valley town
NY Queensbury town
NY Ramapo town
NY Rensselaer city
NY Rensselaer County
NY Riverhead town
NY Rochester city
NY Rockville Centre village
NY Rome city
NY Roslyn Estates village
NY Roslyn Harbor village
NY Roslyn village
NY Rotterdam town
NY Russell Gardens village
NY Rye Brook village
NY Rye city
NY Rye town
NY Saddle Rock village
NY Salina town
NY Sands Point village
NY Saratoga County
NY Scarsdale town
NY Scarsdale village
NY Schaghticoke town
NY Schenectady city
NY Schenectady County
NY Schodack town
NY Schroeppel town
NY Schuyler town
NY Scotia village
NY Sea Cliff village
NY Shoreham village
NY Sloan village
NY Sloatsburg village
NY Smithtown town
NY Solvay village
NY Somers town
NY South Floral Park village
NY South Glens Falls village
NY South Nyack village
NY Southampton town
NY Southport town
NY Spencerport village
NY Spring Valley village
NY Stewart Manor village
NY Stony Point town
NY Suffern village
NY Suffolk County
NY Syracuse city
NY Tarrytown village
NY Thomaston village
NY Tioga County
NY Tompkins County
NY Tonawanda city
NY Tonawa'nda town
NY Troy city
NY Tuckahoe village
NY Ulster County
NY Union town
NY Upper Brookville village
NY Upper Nyack village
NY Utica city
NY Valley Stream village
NY Van Buren town
NY Vestal town
NY Veteran town
NY Village of the Branch village
NY Wappinger town
NY Wappingers Falls village
NY Warren County
NY Washington County
NY Waterford town
NY Waterford village
NY Watervliet city
NY Webster town
NY Webster village
NY Wesley Hills village
NY West Haverstraw village
NY West Seneca town
NY Westbury village
NY Westchester County
NY Western town
NY Wheatfield town
NY White Plains city
NY Whitesboro village
NY Whitestown town
NY Williamsville village
NY Williston Park village
NY Woodsburgh village
NY Yonkers city
NY Yorktown town
NY Yorkville village
OH Addyston village
OH Allen County
OH Allen township
OH Amberley village
OH Amelia village
OH American township
OH Amherst city
OH Amherst township
OH Anderson township
OH Arlington Heights village
OH Auglaize County
OH Aurora city
OH Austintown township
OH Avon city
OH Avon Lake city
OH Bainbridge township
OH Barberton city
OH Batavia township
OH Bath township
OH Bay Village city
OH Beachwood city
OH Beaver township
OH Beavercreek city
OH Beavercreek township
OH Bedford city
OH Bedford Heights city
OH Bellaire city
OH Bellbrook city
OH Belmont County
OH Belpre city
OH Belpre township
OH Bentleyville village
OH Berea city
OH Bethel township
OH Bexley city
OH Blendon township
OH Blue Ash city
OH Boardman township
OH Brady Lake village
OH Bratenahl village
OH Brecksville city
OH Brice village
OH Bridgeport village
OH Brilliant village
OH Brimfield township
OH Broadview Heights city
OH Brook Park city
OH Brookfield township
OH Brooklyn city
OH Brooklyn Heights village
OH Brookside village
OH Brown township
OH Brownhelm township
OH Brunswick city
OH Brunswick Hills township
OH Butler County
OH Butler township
OH Campbell city
OH Canfield city
OH Canfield township
OH Canton city
OH Canton township
OH Carlisle township
OH Carlisle village
OH Centerville city
OH Chagrin Falls township
OH Chagrin Falls village
OH Champion township
OH Chesapeake village
OH Cheviot city
OH Chippewa township
OH Cincinnati city
OH Clark County
OH Clear Creek township
OH Clermont County
OH Cleveland city
OH Cleveland Heights city
OH Cleves village
OH Clinton township
OH Coal Grove village
OH Coitsville township
OH Colerain township
OH Columbia township
OH Concord township
OH Copley township
OH Coventry township
OH Cridersville village
OH Cross Creek township
OH Cuyahoga County
OH Cuyahoga Falls city
OH Cuyahoga Heights village
OH Deer Park city
OH Deerfield township
OH Delaware County
OH Delhi township
OH Doylestown village
OH Dublin city
OH Duchouquet township
OH East Cleveland city
OH Eastlake city
OH Eaton township
OH Elmwood Place village
OH Elyria city
OH Elyria township
OH Englewood city
OH Erie County
OH Etna township
OH Euclid city
OH Evendale village
OH Fairborn city
OH Fairfax village
OH Fairfield city
OH Fairfield County
OH Fairfield township
OH Fairlawn city
OH Fairport Harbor village
OH Fairview Park city
OH Fayette township
OH Forest Park city
OH Fort Shawnee village
OH Franklin city
OH Franklin County
OH Franklin township
OH Gahanna city
OH Garfield Heights city
OH Geauga County
OH Genoa township
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OH German township
OH Girard city
OH Glendale village
OH Glenwillow village
OH Golf Manor village
OH Goshen township
OH Grand River village
OH Grandview Heights city .
OH Green township
OH Green village
OH Greene County
OH Greenhills village
OH Grove City city
OH Groveport village
OH Hamilton city
OH Hamilton County
OH Hamilton township
OH Hanging Rock village
OH Hanover township
OH Harbor View village
OH Harrison township
OH Hartville village
OH Heath city
OH Highland Heights city
OH Billiard city
OH Hills and Dales village
OH Hinckley township
OH Holland village
OH Howland township
OH Hubbard city
OH Hubbard township
OH Huber Heights city
OH Hudson township
OH Hudson village
OH Independence city
OH Ironton city
OH Island Creek township
OH Jackson township
OH Jefferson County
OH Jefferson township
OH Jerome township
OH Kent city
OH Kettering city
OH Kirtland city
OH Lake County
OH Lake township
OH Lakeline village
OH Lakemore village
OH Lakewood city
OH Lawrence County
OH Lawrence township
OH Lemon township
OH Lexington village
OH Liberty township
OH Licking County
OH Licking township
OH Lima city
OH Lima township
OH Lincoln Heights city
OH Linndale village
OH Lockland village
OH Lorain city
OH Lorain County
OH Louisville city
OH Loveland city
OH Lowellville village
OH Lucas County
OH Lyndhurst city
OH Macedonia city
OH Mad River township
OH Madeira city
OH Madison township
OH Mahoning County
OH Maineville village
OH Mansfield city
OH Maple Heights city
OH Marble Cliff village
OH Mariemont village
OH Martins Ferry city
OH Mason city
OH Massillon city
OH Maumee city
OH Mayfield Heights city
OH Mayfield village
OH McDonald village
OH Mead township
OH Medina County
OH Mentor city
OH Mentor-on-the-Lake city
OH Meyers Lake village
OH Miami County
OH Miami township
OH Miamisburg city
OH Middleburg Heights city
OH Middletown city
OH Mifflin township
OH Milford city
OH Millbury village
OH Millville village
OH Minerva Park village
OH Mingo Junction city
OH Mogadore village
OH Monclova township
OH Monroe township
OH Monroe village
OH Montgomery city
OH Montgomery County
OH Moorefield township
OH Moraine city
OH Moreland Hills village
OH Mount Healthy city
OH Munroe Falls village
OH New Miami village
OH New Middletown village
OH New Rome village
OH Newark city
OH Newark township
OH Newburgh Heights village
OH Newton township
OH Newtown village
OH Niles city
OH Nimishillen township
OH North Bend village
OH North Canton city
OH North College Hill city
OH North Olmsted city
OH North Randall village
OH North Ridgeville city
OH North Royalton city
OH Northfield Center township
OH Northfield village
OH Northwood city
OH Norton city
OH Norwich township
OH Norwood city
OH Oakwood city
OH Oakwood village
OH Obetz village
OH Ohio township
OH Olmsted Falls city
OH Olmsted township
OH Ontario village
OH Orange township
OH Orange village
OH Oregon city
OH Ottawa County
OH Ottawa Hills village
OH Painesville city
OH Painesville township
OH Palmyra township
OH Parma city
OH Parma Heights city
OH Pease township
OH Pepper Pike city
OH Perry township
OH Perrysburg city
OH Perrysburg city
OH Perrysburg township
OH Pierce township
OH Plain township
OH Pleasant township
OH Poland township
OH Poland village
OH Portage County
OH Powell village
OH Prairie township
OH Proctorville village
OH Pultney township
OH Randolph township
OH Ravenna city
OH Ravenna township
OH Reading city
OH Reminderville village
OH Reynoldsburg city
OH Richfield township
OH Richfield village
OH Richland County
OH Richmond Heights city
OH Riveredge township
OH Riverlea village
OH Riverside village
OH Rocky River city
OH Rome township
OH Ross township
OH Rossford city
OH Russell township
OH Russia township
OH Sagamore Hills township
OH Seven Hills city
OH Shadyside village
OH Shaker Heights city
OH Sharon township
OH Sharonville city
OH Shawnee Hills village
OH Shawnee township
OH Sheffield Lake city
OH Sheffield township
OH Sheffield village
OH Silver Lake village
OH Silverton city
OH Solon city
OH South Amherst village
OH South Euclid city
OH South Point village
OH South Russell village
OH Springboro city
OH Springdale city
OH Springfield city
OH Springfield township
OH St. Bernard city
OH St. Glair township
OH Stark County
OH Steubenville city
OH Steubenville township
OH Stow city
OH Strongsville city
OH Struthers city
OH Suffield township
OH Sugar Bush Knolls village
OH Sugar Creek township
OH Summit County
OH Sycamore township
OH Sylvania city
OH Sylvania township
OH Symmes township
OH Tallmadge city
OH Terrace Park village
OH The Village of Indian Hill city
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OH
OH
OH
OH
OH
OH
OH
OH
OH
OH
OH
OH
OH
OH
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OH
OH
OH
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OH
OH
OH
OH
OH
OH
OH
OH
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OH
OH
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OH
OH
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OH
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OK
OK
OK
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Timberlake village
Trenton city
Trotwood city
Troy township
Trumbull County
Truro township
Turtle Creek township
Tuscarawas township
Twinsburg city
Twinsburg township
Union city
Union County
Union township
University Heights city
Upper Arlington city
Upper township
Urbancrest village
Valley View village
Valleyview village
Vandalia city
Vermilion city
Vermilion township
Violet township
Wadsworth city
Wadsworth township
Waite Hill village
Walbridge village
Walton Hills village
Warren city
Warren County
Warren township
Warrensville Heights city
Warrensville township
Washington County
Washington township
Wayne County
Wayne township
Weathersfield township
Wells township
West Carrollton City city
West Milton village
Westerville city
Westlake city
Whitehall city
Whitewater township
Wickliffe city
Willoughby city
Willoughby Hills city
Willowick city
Wintersville village
Wood County
Woodlawn village
Woodmere village
Worthington city
Wyoming city
Youngstown city
Arkoma town
Bethany city
Bixby city
Broken Arrow city
Canadian County
Catoosa city
Choctaw city
Cleveland County
Comanche County
Creek County
Del City city
Edmond city
Forest Park town
Hall Park town
Harrah town
Jenks city
Jones town
Lake Aluma town
Lawton city
Le Flore County
OK Logan County
OK Midwest City city
OK Moffett town
OK Moore city
OK Mustang city
OK Nichols Hills city
OK Nicoma Park city
OK Norman city
OK Oklahoma County
OK Osage County
OK Pottawatomie County
OK Rogers County
OK Sand Springs city
OK Sequoyah County
OK Smith Village town
OK Spencer city
OK The Village city
OK Tulsa County
OK Valley Brook town
OK Wagoner County
OK Warr Acres city
OK Woodlawn Park town
OK Yukon city
OR Central Point city
OR Columbia County
OR Durham city
OR Jackson County
OR Keizer city
OR King City city
OR Lane Countyr
OR Marion County
OR Maywood Park city
OR Medford city
OR Phoenix city
OR Polk County
OR Rainier city
OR Springfield city
OR Troutdale city
OR Tualatin city"
OR Wood Village city
PA Abington township
PA Adamsburg borough
PA Alburtis borough
PA Aldan borough
PA Aleppo township
PA Aliquippa city
PA Allegheny County
PA Allegheny township
PA Allen township
PA Allenport borough
PA Alsace township
PA Altoona city
PA Ambler borough
PA Ambridge borough
PA Amwell township
PA Antis township
PA Antrim township
PA Archbald borough
PA Arnold city
PA Ashley borough
PA Aspinwall borough
PA Aston township
PA Avalon borough
PA Avoca borough
PA Baden borough
PA Baldwin borough
PA Baldwin township
PA Beaver borough
PA Beaver County
PA Beaver Falls city
PA Bell Acres borough
PA Belle Vernon borough
PA Bellevue borough
PA Ben Avon borough
PA Ben Avon Heights borough
PA Bensalem township
PA Berks County
PA Bern township
PA Bethel Park borough
PA Bethel township
PA Bethlehem city
PA Bethlehem township
PA Big Beaver borough
PA Birdsboro borough
PA Birmingham township
PA Blair County
PA Blair township
PA Blakely borough
PA Blawnox borough
PA Boyertown borough
PA Brackenridge borough
PA Braddock borough
PA Braddock Hills borough
PA Bradfordwoods borough
PA Brentwood borough
PA Bridgeport borough
PA Bridgeville borough
PA Bridgewater borough
PA Brighton township
PA Bristol borough
PA Bristol township
PA Brookhaven borough
PA Brownstown borough
PA Brownsville borough
PA Brownsville township
PA Bryn Athyn borough
PA Buckingham township
PA Bucks County
PA California borough
PA Cain township
PA Cambria County
PA Camp Hill borough
PA Canonsburg borough
PA Canton township
PA Carbondale city
PA Carbondale township
PA Carnegie borough
PA Carroll township
PA Castle Shannon borough
PA Catasauqua borough
PA Cecil township
PA Center township
PA Centre County
PA Chalfant borough
PA Chalfont borough
PA Charleroi borough
PA Charlestown township
PA Chartiers township
PA Cheltenham township
PA Chester city
PA Chester County
PA Chester Heights borough
PA Chester township
PA Cheswick borough
PA Chippewa township
PA Churchill borough
PA Clairton city
PA Clarks Green borough
PA Clarks Summit borough
PA Clifton Heights borough
PA Coal Center borough
PA Coatesville city
PA Colebrookdale township
PA College township
PA Collegeville borough
PA Collier township
PA Collingdale borough
PA Columbia borough
PA Colwyn borough
PA Concord township
PA Conemaugh township
PA Conestoga township
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 6882'
PA Conewago township
PA Conshohocken borough
PA Conway borough
PA Coplay borough
PA Coraopolis borough
PA Courtdale borough
PA Crafton borough
PA Crescent township
PA Cumberland County
PA Cumru township
PA Daisytown borough
PA Dale borough
PA Dallas borough
PA Dallas township
PA Dallastown borough
PA Darby borough
PA Darby township
PA Daugherty township
PA Dauphin County
PA Delaware County
PA Delmont borough
PA Derry township
PA Dickson City borough
PA Donora borough
PA Dormont borough
PA Douglass township
PA Dover borough
PA Dover township
PA Downingtown borough
PA Doylestown borough
PA Doylestown township
PA Dravosburg borough
PA Duboistown borough
PA Duncansville borough
PA Dunlevy borough
PA Dunmore borough
PA Dupont borough
PA Duquesne city
PA Duryea borough
PA East Allen township
PA East Bradford township
PA East Brandywine township
PA East Cain township
PA Easl Conemaugh borough
PA East Coventry township
PA East Deer township
PA East Fallowfield township
PA Easl Coshen township
PA East Hempfield township
PA East Lampeter township
PA East Lansdowne borough
PA East McKeesport borough
PA East Norriton township
PA East Pennsboro township
PA East Petersburg borough
PA East Pikeland township
PA East Pittsburgh borough
PA East Rochester borough
PA East Taylor township
PA East Vincent township
PA East Washington borough
PA East Whiteland township
PA Easton city
PA Easttown township
PA Eastvale borough
PA Economy borough
PA Eddystone borough
PA Edgewood borough
PA Edgeworth borough
PA Edgmont township
PA Edwardsville borough
PA Elco borough
PA Elizabeth borough
PA Elizabeth township
PA Ellport borough
PA Ellwood City borough
PA Emmaus borough
PA Emsworth borough
PA Erie city
PA Erie County
PA Etna borough
PA Exeter borough
PA Exeter township
PA Export borough
PA Fairfield township
PA Fairview township
PA Fallowfield township
PA Falls township
PA Fallston borough
PA Farrell city
PA Fayette City borough
PA Fayette County
PA Fell township
PA Ferguson township
PA Ferndale borough
PA Findlay township
PA Finleyville borough
PA Folcroft borough
PA Forest Hills borough
PA Forks township
PA Forty Fort borough
PA Forward township
PA Fountain Hill borough
PA Fox Chapel borough
PA Franconia township
PA Franklin borough
PA Franklin County
PA Franklin Park borough
PA Franklin township
PA Frankstown township
PA Frazer township
PA Freedom borough
PA Freemansburg borough
PA Geistown borough
PA Glassport borough
PA Glendon borough
PA Glenfield borough
PA Glenolden borough
PA Green Tree borough
PA Greensburg city
PA Hallam borough
PA Hampden township
PA Hampton township
PA Hanover township
PA Harborcreek township
PA Harmar township
PA Harmony township
PA Harris township
PA Harrisburg city
PA Harrison township
PA Harveys Lake borough
PA Hatboro borough
PA Hatfield borough
PA Hatfield township
PA Haverford township
PA Haysville borough
PA Heidelberg borough
PA Hellam township
PA Hellertown borough
PA Hempfield township
PA Hepburn township
PA Hermitage city
PA Highspire borough
PA Hilltown township
PA Hollidaysburg borough
PA Homestead borough
PA Homewood borough
PA Hopewell township
PA Horsham township
PA Houston borough
PA Hughestown borough
PA Hulmeville borough
PA Hummelstown borough
PA Hunker borough
PA Indiana township
PA Ingram borough
PA Irwin borough
PA Ivyland borough
PA Jackson township
PA Jacobus borough
PA Jeannette city
PA Jefferson borough
PA Jenkins township
PA Jenkintown borough
PA Jermyn borough
PA Jessup borough
PA Johnstown city
PA Juniata township
PA Kenhorst borough
PA Kennedy township
PA Kilbuck township
PA Kingston borough
PA Kingston township
PA Koppel borough
PA Lackawanna County
PA Laflin borough
PA Lancaster city
PA Lancaster County
PA Lancaster township
PA Langhorne borough
PA Langhorne Manor borough
PA Lansdale borough
PA Lansdowne borough
PA Larksville borough
PA Laurel Run borough
PA Laureldale borough
PA Lawrence County
PA Lawrence Park township
PA Lebanon County
PA Leesport borough
PA Leet township
PA Leetsdale borough
PA Lehigh County
PA Lehman township
PA Lemoyne borough
PA Liberty borough
PA Limerick township
PA Lincoln borough
PA Lititz borough
PA Logan township
PA Loganville borough
PA London Britain township
PA Londonderry township
PA Lorain borough
PA Lower Allen township
PA Lower Alsace township
PA Lower Burrell city
PA Lower Chi Chester township
PA Lower Frederick township
PA Lower Gwynedd township
PA Lower Heidelberg township
PA Lower Macungie township
PA Lower Makefield township
PA Lower Merion township
PA Lower Moreland township
PA Lower Nazareth township
PA Lower Paxton township
PA Lower Pottsgrove township
PA Lower Providence township
PA Lower Salford township
PA Lower Saucon township
PA Lower Southampton township
PA Lower Swatara township
PA Lower Yoder township
PA Loyalsock township
PA Luzerne borough
PA Luzerne County
PA Luzerne township
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68830 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
PA Rostraver township
PA Royalton borough
PA Royersford borough
PA Rutledge borough
PA Salem township
PA Salisbury township
PA Scalp Level borough
PA Schuylkill township
PA Schwenksville borough
PA Scott township
PA Scranton city
PA Sewickley borough
PA Sewickley Heights borough
PA Sewickley Hills borough
PA Sewickley township
PA Shaler township
PA Sharon city
PA Sharon Hill borough
PA Sharpsburg borough
PA Sharpsville borough
PA Shenango township
PA Shillington borough
PA Shiremanstown borough
PA Silver Spring township
PA Sinking Spring borough
PA Skippack township
PA Somerset County
PA Souderton borough
PA South Abington township
PA South Coatesville borough
PA South Fayette township
PA South Greensburg borough
PA South Hanover township
PA South Heidelberg township
PA South Heights borough
PA South Huntingdon township
PA South Park township
PA South Pymatuning township
PA South Strabane township
PA South Whitehall township
PA South Williamsport borough
PA Southmont borough
PA Southwest Greensburg borough
PA Speers borough
PA Spring City borough
PA Spring Garden township
PA Spring township
PA Springdale borough
PA Springdale township
PA Springettsbury township
PA Springfield township
PA St. Lawrence borough
PA State College borough
PA Steelton borough
PA Stockdale borough
PA Stonycreek township
PA Stowe township
PA Sugar Notch borough
PA Summit township
PA Susquehanna township
PA Sutersville borough
PA Swarthmore borough
PA Swatara township
PA Swissvale borough
PA Swoyersville borough
PA Tarentum borough
PA Taylor borough
PA Telford borough
PA Temple borough
PA Thornburg borough
PA Thornbury township
PA Throop borough
PA Tinicum township
PA Towamencin township
PA Trafford borough
PA Trainer borough
PA Lycoming County
PA Lycoming township
PA Macungie borough
PA Madison borough
PA Maidencreek township
PA Malvern borough
PA Manchester township
PA Manheim township
PA Manor borough
PA Manor township
PA Marcus Hook borough
PA Marple township
PA Marshall township
PA Marysville borough
PA Mayfield borough
PA McCandless township
PA McKean township
PA McKees Rocks borough
PA McKeesport city
PA Mechanicsburg borough
PA Media borough
PA Mercer County
PA Middle Taylor township
PA Middletown borough
PA Middletown township
PA Millbourne borough
PA Millcreek township
PA Millersville borough
PA Millvale borough
PA Modena borough
PA Mohnton borough
PA Monaca borough
PA Monessen city
PA Monongahela city
PA Monroe township
PA Montgomery County
PA Montgomery township
PA Montoursville borough
PA Moon township
PA Moosic borough
PA Morrisville borough
PA Morton borough
PA Mount Lebanon township
PA Mount Oliver borough
PA Mount Penn borough
PA Mountville borough
PA Muhlenberg township
PA Munhall borough
PA Municipality of Monroeville borough
PA Municipality of Murrysville borough
PA Nanticoke city
PA Narberth borough
PA Nether Providence township
PA Neville township
PA New Brighton borough
PA New Britain borough
PA New Britain township
PA New Cumberland borough
PA New Eagle borough
PA New Galilee borough
PA New Garden township
PA New Hanover township
PA New Kensington city
PA New Sewickley township
PA New Stanton borough
PA Newell borough
PA Newport township
PA Newton township
PA Newtown borough
PA Newtown township
PA Norristown borough
PA North Belle Vernon borough
PA North Braddock borough
PA North Catasauqua borough
PA North Charleroi borough
PA North Coventry township
PA North Franklin township
PA North Huntingdon township'
PA North Irwin borough
PA North Londonderry township
PA North Sewickley township
PA North Strabane township
PA North Versailles township
PA North Wales borough
PA North Whitehall township
PA North York borough
PA Northampton borough
PA Northampton County
PA Northampton township
PA Norwood borough
PA Oakmont borough
PA O'Hara township
PA Ohio township
PA Old Forge borough
PA Old Lycoming township
PA Olyphant borough
PA Ontelaunee township
PA Osborne borough
PA Paint borough
PA Paint township
PA Palmer township
PA Palmyra borough
PA Parkside borough
PA Patterson Heights borough
PA Patterson township
PA Patton township
PA Paxtang borough
PA Penbrook borough
PA Penn borough
PA Penn Hills township
PA Penn township
PA Penndel borough
PA Pennsbury Village borough
PA Pequea township
PA Perkiomen township
PA Perry County
PA Perry township
PA Peters township
PA Phoenixville borough
PA Pine township
PA Pitcairn borough
PA Pittsburgh city
PA Pittston city
PA Pittston township
PA Plains township
PA Pleasant Hills borough
PA Plum borough
PA Plymouth borough
PA Plymouth township
PA Port Vue borough
PA Potter township
PA Pottstown borough
PA Pringle borough
PA Prospect Park borough
PA Pulaski township
PA Radnor township
PA Rankin borough
PA Ransom township
PA Reading city
PA Red Lion borough
PA Reserve township
PA Richland township
PA Ridley Park borough
PA Ridley township
PA Robinson township
PA Rochester borough
PA Rochester township
PA Rockledge borough
PA Roscoe borough
PA Rose Valley borough
PA Ross township
PA Rosslyn Farms borough
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Federal Register/Vol. 64. No. 235/Wednesday, December 8, 1999/Rules and Regulations 68831
PA Trappe borough
PA Tredyffrin township
PA Tullytown borough
PA Turtle Creek borough
PA Union township
PA Upland borough
PA Upper Allen township
PA Upper Chichester township
PA Upper Darby township
PA Upper Dublin township
PA Upper Gwynedd township
PA Upper Leacock township
PA Upper Macungie township
PA Upper Makefield township
PA Upper Merion township
PA Upper Milford township
PA Upper Moreland township
PA Upper Pottsgrove township
PA Upper Providence township
PA Upper Saucon township
PA Upper Southampton township
PA Upper St. Clair township
PA Upper Yoder township
PA Uwchlan township
PA Valley township
PA Vanport township
PA Verona borough
PA Versailles borough
PA Wall borough
PA VVarminster township
PA Warrington township
PA Warrior Run borough
PA Warwick township
PA Washington city
PA Washington County
PA Washington township
PA Wayne township
PA Wernersville borough
PA Wesleyville borough
PA West Bradford township
PA West Brownsville borough
PA West Chester borough
PA West Conshohocken borough
PA West Deer township
PA West Earl township
PA West Easton borough
PA West Elizabeth borough
PA West Fail-view borough
PA West Goshen township
PA West Hanover township
PA West Hempfleld township
PA West Homestead borough
PA West Lampeter township
PA West Lawn borough
PA West Manchester township
PA West Mayfield borough
PA West Middlesex borough
PA West Mifflin borough
PA West Newton borough
PA West Norriton township
PA West Pikeland township
PA West Piltston borough
PA West Pottsgrove township
PA West Reading borough
PA West Taylor township
PA West View borough
PA West Whiteland township
PA West Wyoming borough
PA West York borough
PA Westmont borough
PA Westmoreland County
PA Westtoxvn township
PA Wheatland borough
PA Whitaker borough
PA White Oak borough
PA White township
PA Whitehall township
PA Whitemarsh township
PA Whitpain township
PA Wilkes-Barre city
PA Wilkes-Barre township
PA Wilkins township
PA Wilkinsburg borough
PA Williams township
PA Williamsport city
PA Willistown township
PA Wilmerding borough
PA Wilson borough
PA Windber borough
PA Windsor borough
PA Windsor township
PA Worcester township
PA Wormleysburg borough
PA Wrightsville borough
PA Wyoming borough
PA Wyomissing borough
PA Wyomissing Hills borough
PA Yardley borough
PA Yatesville borough
PA Yeadon borough
PA Yoe borough
PA York city
PA York County
PA York township
PA Youngwood borough
PR Aibonita
PR Anasco
PR Aquada
PR Aquadilla
PR Aquas Buenas
PR Arecibo
PR Bayamon
PR Cabo Rojo
PR Caguas
PR Camuy
PR Canovanas
PR Catano
PR Cayey
PR Cidra
PR Dorado
PR Guaynabo
PR Gurabo
PR Hatillo
PR Hormigueros •
PR Humacao
PR Juncos
PR Las Piedras
PR Loiza
PR Manati
PR Mayaguez
PR Moca
PR Naguabo
PR Naranjito
PR Penuelas
PR Ponce
PR Rio Grande
PR San German
PR San Lorenzo
PR Toa Alta
PR Toa Baja
PR Trujillo Alto
PR Vega Alta
PR Vega Baja
PR Yabucao
RI Barrington town
RI Bristol town
RI Burrillville town
RI Central Falls city
RI Coventry town
RI Cranston city
RI Cumberland town
RI East Greenwich town
RI East Providence city
RI Glocester town
RI Jamestown town
RI Johnston town
RI Lincoln town
RI Middletown town
RI Newport city
RI Newport County
RI North Kingstown town
RI North Providence town
RI North Smithfield town
RI Pawtucket city
RI Portsmouth town
RI Providence city
RI Providence County
RI Scituate town
RI Smithfield town
RI Tiverton town
RI Warren town
RI Warwick city
RI Washington County
RI West Greenwich town
RI West Warwick town
RI Woonsocket city
SC Aiken city
SC Aiken County
SC Anderson city
SC Anderson County
SC Arcadia Lakes town
SC Berkeley County
SC Burnettown town
SC Cayce city
SC Charleston city
SC Charleston County
SC City View town
SC Columbia city
SC Cowpens town
SC Darlington County
SC Dorchester County
SC Edgefield County
SC Florence city
SC Florence County
SC Folly Beach city
SC Forest Acres city
SC Fort Mill town
SC Georgetown County
SC Goose Creek city
SC Hanahan city
SC Horry County
SC Irmo town
SC Isle of Palms city
SC Lexington County
SC Lincolnville town
SC Mount Pleasant town
SC Myrtle Beach city
SC North Augusta city
SC North Charleston city
SC Pickens County
SC Pineridge town
SC Quinby town
SC Rock Hill city
SC South Congaree town
SC Spartanburg city
SC Spartanburg County
SC Springdale town
SC Sullivan's Island town
SC Summerville town
SC Sumter city
SC Sumter County
SC Surfside Beach town
SC West Columbia city
SC York County
SD Big Sioux township
SD Central Pennington unorg.
SD Lincoln County
SD Mapleton township
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68832 Federal Register / Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
SD Minnehaha County
SD North Sioux City city
SD Pennington County
SD Rapid City city
SD Split Rock township
SD Union County
SD Wayne township
TN Alcoa city
TN Anderson County
TN Bartlett town
TN Belle Meade city
TN Berry Hill city
TN Blount County
TN Brentwood city
TN Bristol city
TN Carter County
TN Church Hill town
TN Clarksville city
TN Collegedale city
TN Davidson County
TN East Ridge city
TN Elizabethton city
TN Farragut town
TN Forest Hills city
TN Germantown city
TN Goodlettsville city
TN Hamilton County
TN Hawkins County
TN Hendersonville city
TN Jackson city
TN Johnson City city
TN Jonesborough town
TN Kingsport city
TN Knox County
TN Lakesite city
TN Lakewood city
TN Lookout Mountain town
TN Loudon County
TN Madison County
TN Maryville city
TN Montgomery County
TN Mount Carmel town
TN Mount Juliet city
TN Oak Hill city
TN Red Bank city
TN Ridgeside city
TN Rockford city
TN Shelby County
TN Signal Mountain town
TN Soddy-Daisy city
TN Sullivan County
TN Sumner County
TN Washington County
TN Williamson County
TN Wilson County
TX Addison city "
TX Alamo city "
TX Alamo Heights city
TX Allen city
TX Archer County
TX Azle city
TX Balch Springs city
TX Balcones Heights city
TX Bayou Vista village
TX Baytown city
TX Bedford city
TX Bell County
TX Bellaire city
TX Bellmead city
TX Belton city
TX Benbrook'city
TX Beverly Hills city
TX Bexar County
TX Blue Mound"city
TX Bowie County
TX Brazoria County
TX Brazos County
TX Brookside Village city
TX Brownsville city
TX Bryan city
TX Buckingham town
TX Bunker Hill Village city
TX Cameron County
TX Carrollton city
TX Castle Hills city
TX Cedar Hill city
TX Cedar Park city
TX Chambers County
TX Cibolo city
TX Clear Lake Shores city
TX Clint town
TX Cockrell Hill city
TX College Station city
TX Colleyville city
TX Collin County
TX Comal County
TX Combes town
TX Converse city
TX Copperas Cove city
TX Corinth town
TX Coryell County
TX Crowley city
TX Dallas County
TX Dalworthington Gardens city
TX Deer Park city
TX Denison city
TX Dentoncity
TX Denton County
TX DeSoto city
TX Dickinson city
TX Donna city
TX Double Oak town
TX Duncanville city
TX Ector County
TX Edgecliff village
TX Edinburg city
TX El Lago city "
TX El Paso County
TX Ellis County
TX Euless city
TX Everman city
TX Farmers Branch city
TX Flower Mound town
TX Forest Hill city
TX Fort Bend County
TX Friendswood city
TX Galena Park city
TX Galveston city "
TX Galveston County
TX Grand Prairie city
TX Grapevine city
TX Grayson County
TX Gregg County
TX 'Groves city "
TX Guadalupe County
TX Haltom City city "
TX Hardin County
TX Harker Heights city
TX Harlingen city
TX Harrison County
TX Hedwig Village'city
TX Hewitt city
TX Hickory Creek town
TX Hidalgo County
TX Highland Park town
TX Highland Village city
TX Hill Country Village city
TX Hilshire Village city
TX Hitchcock city
TX Hollywood Park town
TX Howe town
TX Humble city
TX Hunters Creek Village city
TX Hurst city
TX Hutchins city
TX Impact town
TX Jacinto City city
TX Jefferson County
TX Jersey Village city
TX Johnson County
TX Jones County
TX Katy city
TX Kaufman County
TX Keller city
TX Kemah city
TX Kennedale city
TX Killeencity
TX Kirby city
TX Kleberg County
TX La Marque city
TX La Porte city
TX Lacy-Lakeview city
TX Lake Dallas city
TX Lake Worth city
TX Lakeside City town
TX Lakeside town
TX Lampasas County
TX Lancaster city
TX League City city
TX Leander city
TX Leon Valley city
TX Lewisville city
TX Live Oak city
TX Longview city
TX Lubbock County
TX Lumberton city
TX Martin County
TX McAllen city
TX McLennan County
TX Meadows city
TX Midland city
TX . Midland County
TX Mission city
TX Missouri City city
TX Montgomery County
TX Morgan's Point city
TX Nash city
TX Nassau Bay city
TX Nederland city
TX Nolanville city
TX North Richland Hills city
TX Northcrest town
TX Nueces County
TX Odessa city
TX Olmos Park city
TX Palm Valley town
TX Palmview city
TX Pantego town
TX Parker County
TX Pearland city
TX Pflugerville city
TX Pharr city
TX Piney Point Village city
TX Port Arthur city
TX Port Neches city
TX Portland city
TX Potter County
TX Primera town
TX Randall County
TX Richardson city
TX Richland Hills city
TX River Oaks city
TX Robinson city
TX Rockwall city
TX Rockwall County
TX Rollingwood city
TX Rose Hill Acres city
TX Rowlett city
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 6883^
TX Sachse city
TX Saginaw city
TX San Angelo city
TX San Benito city
TX San Juan city
TX San Patricio County
TX Sansom Park city
TX Santa Fe city
TX Schertz city
TX Seabrook city
TX Seagoville city
TX Selma city
TX Shavano Park city
TX Sherman city
TX Shoreacres city
TX Smith County
TX Socorro town
TX South Houston city
TX Southside Place city
TX Spring Valley city
TX Stafford town .
TX Sugar Land city
TX Sunset Valley city
TX Tarrant County
TX Taylor County
TX Taylor Lake Village city
TX Temple city
TX Terrell Hill's city
TX Texarkana city
TX Texas City city
TX Tom Green County
TX Travis County
TX Tye town
TX Tyler city
TX Universal City city
TX University Park city
TX Victoria city
TX Victoria County
TX Wake Village city
TX Waller County
TX Watauga city
TX Webb County
TX Webster city
TX Weslaco city
TX West Lake Hills city
TX West University Place city
TX Westover Hills town
TX Westworth village
TX White Oak city
TX White Settlement city
TX Wichita County
TX Wichita Falls city
TX Williamson County
TX Wilmer city
TX Windcrestcity
TX Woodway city
UT American Fork city
UT Bluffdale city
UT Bountiful city
UT Cache County
UT Cedar Hills town
UT Centerville city
UT Clearfield city"
UT Clinton city "
UT Davis County
UT Draper city
UT Farmington city
UT Farr West city
UT Fruit Heights city
UT Harrisville city "
UT Highland city"
UT Hyde Park city
UT Kaysville city"
UT Laytoncity
UT Lehicity
UT Lindon citv
UT Logan city
UT Mapleton city
UT Midvale city
UT Millville city
UT Murray city
UT North Logan city
UT North Ogden city
UT North Salt Lake city
UT Ogden city
UT Orem city
UT Pleasant Grove city
UT Pleasant View city
UT Providence city
UT Provo city
UT River Heights city
UT Riverdale city
UT Riverton city
UT Roy city
UT Sandy city
UT Smithfield city
UT South Jordan city
UT South Ogden city
UT South Salt Lake city
UT South Weber city
UT Springville city
UT Sunset city
UT Syracuse city
UT Uintah town
UT Utah County
UT Washington Terrace city
UT Weber County
UT West Bountiful city
UT West Jordan city
UT West Point city
UT West Valley City city
UT Woods Cross city
VA Albemarle County
VA Alexandria city
VA Amherst County
VA Bedford County
VA Botetourt County
VA Bristol city
VA Campbell County
VA Charlottesville city
VA Colonial Heights city
VA Danville city
VA Dinwiddie County
VA Fairfax city
VA Falls Church city
VA Fredericksburg city
VA Gate City town
VA Gloucester County
VA Hanover County
VA Herndon town
VA Hopewell city
VA James City County
VA Loudoun County
VA Lynchburg city
VA Manassas city
VA Manassas Park city
VA Occoquan town
VA Petersburg city
VA Pittsylvania County
VA Poquoson city
VA Prince George County
VA Richmond city
VA Roanoke city
VA Roanoke County
VA Salem city
VA Scott County
VA Spotsylvania County
VA Stafford County
VA Suffolk city
VA Vienna town
VA Vinton town
VA Washington County
VA Weber City town
VA Williamsburg city
VA York County
VT Burlington city
VT Chittenden County
VT Colchester town
VT Essex Junction village
VT Essex town
VT Shelburne town
VT South Burlington city
VT Williston town
VT Winooski city
WA Algona city
WA Auburn city
WA Beaux Arts Village town
WA Bellevue city
WA Bellingham city
WA Benton County
WA Bonney Lake city
WA Bothefl city
WA Bremerton city
WA Brier city
WA Clyde Hill town
WA Cowlitz County
WA Des Moines city
WA DuPont city
WA Edmonds city
WA Everett city
WA Fife city
WA Fircrest town
WA Franklin County
WA Gig Harbor city
WA Hunts Point town
WA Issaquah city
WA Kelso city
WA Kennewick city
WA Kent city
WA Kirkland city
WA Kitsap County
WA Lacey city
WA Lake Forest Park city
WA Longview city
WA Lynnwood city
WA Marysville city
WA Medina city
WA Mercer Island city
WA Mill Creek city
WA Millwood town
WA Milton city
WA Mountlake Terrace city
WA Mukilteo city
WA Normandy Park city
WA Olympia city
WA Pacific city
WA Pasco city
WA Port Orchard city
WA Puyallup city
WA Redmond city
WA Renton city
WA Richland city
WA Ruston town
WA Selah city
WA Steilacoom town
WA Sumner city
WA Thurston County
WA Tukwila city
WA Tumwater city
WA Union Gap city
WA Vancouver city
WA West Richland city
WA Whatcom County
WA Woodway city
WA Yakima city
WA Yakima County
WA Yarrow Point town
WI Algoma town
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S88S4, Federal Register/ Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
WI Allouez village
WI Altoona city
WI Appleton city
WI Ashwaubenon village
WI Bayside village
WI Bellevue town
WI Beloit city
WI Beloit town
WI Big Bend village
WI Black Wolf town
WI Blooming Grove town
WI Brookfield city
WI Brookfield town
WI Brown County
WI Brown Deer village
WI Brunswick towrr
WI Buchanan town
WI Burke town
WI Butler village
WI Caledonia town
WI Calumet County
WI Campbell town
WI Cedarburg city
WI Cedarburg town
WI Chippewa County
WI Chippewa Falls city
WI Clayton town
WI Combined Locks village
WI Cudahy city
WI Dane County
WI De Pere city
WI De Pere town
WI Delafield town
WI Douglas County
WI Dunn town
WI Eagle Point town
WI Eau Claire city
WI Eau Claire County
WI Elm Grove village
WI Elmwood Park village
WI Fitchburg city
WI Fox Point village
WI Franklin city
WI Germantown town
WI Germantown village
WI Glendale city
WI Grafton town
WI Grafton village
WI Grand Chute town
WI Green Bay city
WI Greendale village
WI Greenfield city
WI Greenville town
WI Hales Corners village
WI Hallie town
WI Harmony town
WI Harrison town
WI Hobart town
WI Holmen village
WI Howard village
WI Janesville city
WI Janesville town
WI Kaukauna city
WI Kenosha city
WI Kenosha County
WI Kimberly village
WI Kohler village
WI La Crosse city
WI La Crosse County
WI La Prairie town
WI Lafayette town
WI Lannon village
WI Lima town
WI Lisbon town
WI Little Chute village
WI Madison town
WI Maple Bluff village
WI Marathon County
WI McFarland village
WI Medary town
WI Menasha city
WI Menasha town
WI Menomonee Falls village
WI Mequon city
WI Middleton city
WI Middleton town
WI Monona city
WI Mount Pleasant town
WI Muskego city
WI Neenah city
WI Neenah town
WI Nekimi town
WI New Berlin city
WI North Bay village
WI Norway town
WI Oak Creek city
WI Onalaska city
WI Onalaska town
WI Oshkosh city
WI Oshkosh town
WI Outagamie County
WI Ozaukee County
WI Pewaukee town
WI Pewaukee village
WI Pleasant Prairie town
WI Pleasant Prairie village
WI Racine city
WI Racine County
WI Rib Mountain town
WI River Hills village
WI Rock County
WI Rock town
WI Rothschild village
WI Salem town
WI Schofield city
WI Scott town
WI Sheboygan city
WI Sheboygan County
WI Sheboygan Falls city
WI Sheboygan Falls town
WI Sheboygan town
WI Shelby town
WI Shorewood Hills village
WI Shorewood village
WI Somers town
WI South Milwaukee city
WI St. Francis city
WI Stettin town
WI Sturtevant village
WI Superior city
WI Superior village
WI Sussex village
WI Thiensville village
WI Turtle town
WI Union town
WI Vandenbroek town
WI Vernon town
WI Washington County
WI Washington town
WI Waukesha city
WI Waukesha County
WI Waukesha town
WI Wausau city
WI Wauwatosa city
WI West Allis city
WI West Milwaukee village
WI Weston town
WI Westport town
WI Wheaton town
WI Whitefish Bay village
WI Wilson town
WI Wind Point village
WI Winnebago County
WV Bancroft town
. WV Barboursville village
WV Belle town
WV Benwood city
WV Berkeley County
WV Bethlehem village
WV Brooke County
WV Cabell County
WV Cedar Grove town
WV Ceredo city
WV Charleston city
WV Chesapeake town
WV Clearview village
WV Dunbar city
WV East Bank town
WV Follansbee city
WV Glasgow town
WV Glen Dale city
WV Hancock County
WV Huntington city
WV Hurricane city
WV Kanawha County
WV Kenova city
WV Marmet city
WV Marshall County
WV McMechen city
WV Mineral County
WV Moundsville city
WV Nitro city
WV North Hills town
WV Ohio County
WV Parkersburg city
WV Poca town
WV Putnam County
WV Ridgeleytown
WV South Charleston city
WV St. Albans city
WV Triadelphia town
WV Vienna city
WV Wayne County
WV Weirton city
WV Wheeling city
WV Wood County
WY Casper city
WY Cheyenne city
WY Evansville town
WY Laramie County
WY Mills town
WY Natrona County
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 6883J
Appendix 7 of Preamble —
Governmental Entities (Located Outside
of an Urbanized Area) That Must Be
Examined By the NPDES Permitting '
Authority for Potential Designation
Under §123.35(b)(2)
(All listed entities have a population of at
least 10,000 and a population density of at
least 1,000. A listed entity would only be
potentially designated if it operates a small
MS4. See §122.26(b)(16) for the definition of
a small MS4.)
(This list does not include all operators of
small MS4s that may be designated by the
NPDES permitting authority. Operators of
small MS4s in areas with populations below
10,000 and densities below 1,000 may also be
designated but examination of them is not
required. Also, entities such as military
bases, large hospitals, prison complexes,
universities, sewer districts, and highway
departments that operate a small MS4 in an
area listed here, or in an area otherwise
designated by the NPDES permitting
authority, may be designated and become
subject to permitting regulations.) (Source:
1990 Census of Population and Housing, U.S.
Bureau of the Census. This list is subject to
change with the Decennial Census)
AL Daphne city
AL Jacksonville city
AL Selma city
AR Arkadelphia city
AR Dcnton city
AR Blytheville city
AR Conway city
AR El Dorado city
AR Hot Springs city
AR Magnolia city
AR Rogers city
AR Searcy city
AR Stuttgart city
AZ Douglas city
CA Arcata city
CA Arroyo Grande city
CA Atwater city
CA Auburn city
CA Banning city
CA Brawley city
CA Calexico city
CA Clearlake city
CA Corcoran city
CA Delano city "
CA Desert Hot Springs city
CA Dinuba city
CA Dixon city
CA El Centro'citv
CA El Paso de Robles (Paso Robles) citv
CA Eureka city
CA Fillmore city
CA Gilroy city
CA Grover City city
CA Hanford city
CA Hollister city
CA Lemoore city
CA Los Banos city
CA Madera city
CA Manteca citv
CA Oakdale city
CA Oroville city
CA Paradise town
CA Petaluma city
CA Porterville city
CA Red Bluff city
CA Reedley city
CA Ridgecrest city
CA Sanger city
CA Santa Paula city
CA Selma city
CA South Lake Tahoe city
CA Temecula city
CA Tracy city
CA Tulare city
CA Turlock city
CA Ukiah city
CA Wasco city
CA Woodland city
CO Canon City city
CO Durango city
CO Lafayette city
CO Louisville city
CO Loveland city
CO Sterling city
FL Bartow city
FL Belle Glade city
FL De Land city
FL Eustis city
FL Haines City city
FL Key West city
FL Leesburg city
FL Palatka city
FL Plant City city
FL St. Augustine city
FL St. Cloud city
GA Americus city
GA Carrollton city
GA Cordele city
GA Dalton city
GA Dublin city
GA Griffin city
GA Hinesville city
GA Moultrie city
GA Newnan city
GA Statesboro city
GA Thomasville citv
GA Tifton citv
GA Valdosta city
GA Waycross city
IA Ames city
IA Ankeny city
IA Boone city
IA Burlington city
1A Fort Dodge city
IA Fort Madison city
IA Indianola city
IA Keokuk city "
IA Marshalltown city
IA Mason City city
IA Muscatine city
IA Newton city
IA Oskaloosa city
IA Ottumwa city
IA Spencer citv
ID Caldwell city
ID Coeur d'Alene city
ID Lewiston city
ID Moscow city
ID Nampa city
ID Rexburg city
ID Twin Falls city
IL Belvidere city
IL Canton city
IL Carbondale city
IL Centralia city
IL Charleston city
IL Danville city
IL De Kalb city
IL Dixon city
IL Effingham city
IL Freeport city
IL Galesburg city
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IL
IN
IN
IN
IN
IN
IN
IN
IN
IN
IN
IN
IN
IN
IN
IN
IN
IN
IN
IN
IN
IN
IN
IN
IN
IN
IN
IN
KS
KS
KS
KS
KS
KS
KS
KS
KS
KS
KS
KS
KS
KS
KS
KS
KS
KS
KS
KS
KS
KS
KY
KY
KY
KY
KY
KY
KY
KY
KY
KY
KY
KY
KY
KY
KY
Jacksonville city
Macomb city
Mattoon city
Mount Vernon city
Ottawa city
Pontiac city
Quincy city
Rantoul village
Sterling city
Streator city
Taylorville city
Woodstock city
Bedford city
Columbus city
Crawfordsville city
Frankfort city
Franklin city
Greenfield city
Huntington city
Jasper city
La Porte city
Lebanon city
Logansport city
Madison city
Marion city
Martinsville city
Michigan City city
New Castle city
Noblesville city
Peru city
Plainfield town
Richmond city
Seymour city
Shelbyville city
Valparaiso city
Vincennes city
Wabash city
Warsaw city
Washington city
Arkansas City city
Atchison city
Coffeyville city
Derby city
Dodge City city
El Dorado city
Emporia city
Garden City city
Great Bend city
Hays city
Hutchinson city
Junction City city
Leavenworth city
Liberal city
Manhattan city
McPherson city
Newton city
Ottawa city
Parsons city
Pittsburg city
Salina city
Winfield city
Bowling Green city
Danville city
Frankfort city
Georgetown city
Glasgow city
Hopkinsville city
Madisonville city
Middlesborough city
Murray city
Nicholasville city
Paducah city
Radcliffcity
Richmond city
Somerset city
Winchester city
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68836 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
LA Abbeville city
LA Bastrop city
LA Bogalusa city
LA Crowley city
LA Eunice city
LA Hammond city
LA Jennings city
LA Minden city
LA Morgan City city
LA Natchitoches city
LA New Iberia city
LA Opelousas city
LA Ruston city
LA Thibodaux city
MA Amherst town
MA Clinton town
MA Milford town
MA Newburyport city
MD Aberdeen town
MD Cambridge city
MD Salisbury city
MD Westminster city
ME Waterville city
MI Adrian city
MI Albion city
MI Alpena city
MI Big Rapids city
MI Cadillac city
MI Escanaba city
MI Grand Haven city
MI Marquette city
MI Midland city
MI Monroe city
MI Mount Pleasant city
MI Owosso city
MI Sturgis city
MI Traverse City city
MN Albert Lea city
MN Austin city
MN Bemidji city
MN Brainerd city
MN Faribault city
MN Fergus Falls city
MN Hastings city
MN Hutchinson city
MN Mankato city
MN Marshall city
MN New Ulm city
MN North Mankato city
MN Northfield city
MN Owatonna city
MN Stillwater city
MN Willmar city
MN Winona city
MO Cape Girardeau city
MO Farmington city
MO Hannibal city
MO Jefferson City citv
MO Kennett city
MO Kirksville city
MO Marshall city
MO Maryville city
MO Poplar Bluff city
MO Rolla city
MO Sedalia city
MO Sikeston city
MO Warrensburg city
MO Washington city
MS Brookhaven city
MS Canton city
MS Clarksdale'city
MS Cleveland city
MS Columbus city
MS Greenville city
MS Greenwood city
MS Grenada city
MS Indianola city
MS Laurel city
MS McComb city
MS Meridian city
MS Natchez city
MS Starkville city
MS Vicksburg city
MS Yazoo City city
MT Bozeman city
MT Havre city
MT Helena city
MT Kalispell city
NC Albemarle city
NC Asheboro city
NC Boone town
NC Eden city
NC Elizabeth City city
NC Havelock city
NC Henderson city
NC Kernersville town
NC Kinston city
NC Laurinburg city
NC Lenoir city
NC Lexington city
NC Lumbsrton city
NC Monroe city
NC New Bern city
NC Reidsville city
NC Roanoke Rapids city
NC Salisbury city
NC Sanford city
NC Shelby city
NC Statesville city
NC Tarboro town
NC Wilson city
ND Dickinson city
ND Jamestown city '
ND Minot city
ND Williston city
NE Beatrice city
NE Columbus city
NE Fremont city
NE Grand Island city
NE' Hastings city
NE Kearney city
NE Norfolk city
NE North Platte city
NE Scottsbluff city
NJ East Windsor township
NJ Plainsboro township
NJ Bridgeton city
NJ Princeton borough
NM Alamogordo city
NM Artesia city
NM Clovis city
NM Deming city
NM Farmington city
NM Gallup city
'NM Hobbs city
NM Las Vegas city
NM Portales city"
NM Roswell city
NM Silver City town
NV Elko city
NY Amsterdam city
NY Auburn city
NY Batavia city
NY Canandaigua city
NY Corning city
NY Cortland city
NY Dunkirk city
NY Fredonia village
NY Fulton city
NY Geneva city
NY Gloversville city
NY Jamestown city
NY Kingston city
NY Lockport city
NY Massena village
NY Middletown city
NY Ogdensburg city
NY Clean city
NY Oneonta city
NY Oswego city
NY Plattsburgh city
NY Potsdam village
NY Watertown city
OH Alliance city
OH Ashland city
OH Ashtabula city'
OH Athens city
OH Bellefontaine city
OH Bowling Green city
OH Bucyrus city
OH Cambridge city
OH Chillicothe city
OH Circleville city
OH Coshocton city
OH Defiance city
OH Delaware city
OH Dover city
OH East Liverpool city
OH Findlay city
OH Fostoria city
OH Fremont city
OH Galion city
OH Greenville city
OH Lancaster city
OH Lebanon city
OH Marietta city
OH Marion city
OH Medina city
OH Mount Vernon city
OH New Philadelphia city
OH Norwalk city
OH Oxford city
OH Piqua city
OH Portsmouth city
OH Salem city
OH Sandusky city
OH Sidney city
OH Tiffin city"
OH Troy city
OH Urbana city
OH Washington city
OH Wilmington city
OH Wooster city
OH Xenia city
OH Zanesville city
OK Ada city
OK Altus city
OK Bartlesvi'lle city
OK Chickasha city
OK Claremore city
OK McAlester city
OK Miami city
OK Muskogee city
OK Okmulgee city
OK Owasso city
OK Ponca City city
OK Stillwater city
OK Tahlequah city
OK Weatherford city
OR Albany city
OR Ashland city
OR Astoria city
OR Bend city
OR City of the Dalles city
OR Coos Bay city
OR Corvallis city
OR Grants Pass city
OR Hermiston city
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68837J
OR Klamath Falls city
OR La Grande city
OR Lebanon city
OR McMinnville city
OR Newberg city
OR Pendleton city
OR Roseburg city
OR VVoodburn city
PA Berwick borough
PA Bloomsburg town
PA Butler city
PA Carlisle borough
PA Chambersburg borough
PA Ephrata borough
PA Hanover borough
PA Hazleton city
PA Indiana borough
PA Lebanon city
PA Meadville city
PA New Castle city
PA Oil City city
PA Pottsville city
PA Sunbury city
PA. Uniontown city
PA Warren city
RI Narragansett town
SC Clemson city
SC Easley city
SC Gaffney city
SC Greenwood city
SC Nowberry town
SC Orangeburg city
SD Aberdeen city
SD Brookings city
SD Huron city
SD Mitchell city
SD Vermillion city
SD VVatertown city
SD Yankton city
TN Brownsville city
TN Cleveland city
TN Collierville town
TN Cookeville city
TN Dyersburg city
TN Greeneville town
TN Lawrenceburg city
TN McMinnville city"
TN Millington city
TN Morristown city
TN Murfreesboro city
TN Shelbyville city "
TN Springfield city
TN Union City city
TX Alice city
TX Alvincity
TX Andrews city
TX Angleton city
TX Bay City city
TX Beeville city
TX Big Spring city
TX Borger city
TX Brenham city
TX Brownwood city
TX Burkburnett city
TX Canyon city
TX Cleburne city
TX Conroe city
TX Coppell city
TX Corsicana city
TX Del Rio city
TX Dumas city
TX Eagle Pass city
TX El Campo city
TX Gainesville city
TX Gatesville city
TX Georgetown city
TX Henderson city
TX Hereford city
TX Huntsville city
TX Jacksonville city
TX Kerrville city
TX Kingsville city
TX Lake Jackson city
TX Lamesa city
TX Levelland city
TX Lufkin city
TX Mercedes city
TX Mineral Wells city
TX Mount Pleasant city
TX Nacogdoches city
TX New Braunfels city
TX Palestine city
TX Pampa city
TX Pecos city"
TX Plainview city
TX Port Lavaca city
TX Robstown city
TX Rosenberg city
TX Round Rock city
TX San Marcos city
TX Seguin city
TX Snyder city
TX Ste'phenville city
TX Sweetwater city
TX Taylor city
TX The Colony city
TX Uvalde city
TX Vernon city
TX Vidor city
UT Brigham City city
UT Cedar City city
UT Spanish Fork city
UT Tooele city
VA Blacksburg town
VA Christiansburg town
VA Front Royal town
VA Harrisonburg city
VA Leesburg town
VA Martinsville city
VA Radford city
VA Staunton city
VA Waynesboro city
VA Winchester city
VT Rutland city
WA Aberdeen city
WA Anacortes city
WA Centralia city
WA Ellensburg city
WA Moses Lake city
WA Mount Vernon city
WA Oak Harbor city
WA Port Angeles city
WA Pullman city
WA Sunnyside city
WA Walla Walla city
WA Wenatchee city
WI Beaver Dam city
WI Fond du Lac city
WI Fort Atkinson city
WI Manitowoc city
WI Marinette city
WI Marshfield city
WI Menomonie city
WI Monroe city
WI Oconomowoc city
WI Stevens Point city
WI Sun Prairie city
WI Two Rivers city
WI Watertown city
WI West Bend city
WI Whitewater city
WI Wisconsin Rapids city
WV Beckley city
WV Bluefield city
WV Clarksburg city
WV Fairmont city
WV Martinsburg city
WV Morgantown city
WY Evanston city
WY Gillette city
WY Green River city
WY Laramie city
WY Rock Springs city
WY Sheridan city
For the reasons set forth in the
preamble, chapter I of title 40 of the
Code of Federal Regulations is amended
as follows:
PART 9—OMB APPROVALS UNDER
THE PAPERWORK REDUCTION ACT
1. The authority citation for part 9
continues to read as follows:
Authority: 7 U.S.C. 135 etseq., 136-136y;
15 U.S.C. 2001, 2003, 2005, 2006, 2601-2671;
21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 etseq., 1311, 1313d, 1314, 1318,
1321, 1326, 1330, 1342, 1344, 1345 (d) and
(e), 1361; E.O. 11735, 38 FR 21243, 3 CFR,
1971-1975 Comp. p. 973; 42 U.S.C. 241,
242b, 243, 246, 300f, 300g, 300g-l, 300g-2,
300g-3, 300g-4, 300gT-5, 300g-6, 300J-1,
300J-2, 300J-3, 300J-4, 300J-9, 1857 etseq.,
6901-6992k, 7401-7671q, 7542, 9601-9657,
11023, 11048.
2. In § 9.1 the table is amended by
adding entries in numerical order under
the indicated heading to read as follows:
§ 9.1 OMB approvals under the Paperwork
Reduction Act.
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68838 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
40 CFR citation
OMB control
No.
EPA Administered Permit Programs: The National Pollutant Discharge Elimination System
122.26(g)
2040-0211
State Permit Requirements
123.35(b)
2040-0211
PART 122—EPA ADMINISTERED
PERMIT PROGRAMS: THE NATIONAL
POLLUTANT DISCHARGE
ELIMINATION SYSTEM
1. The authority citation for part 122
continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C.
1251 etseq.
2. Revise § 122.21(c)(l) to read as
follows:
§ 122.21 Application for a permit
(applicable to State programs, see § 123.25).
* * * * *
(c) Time to apply. (1) Any person
proposing a new discharge, shall submit
an application at least 180 days before
the date on which the discharge is to
commence, unless permission for a later
date has been granted by the Director.
Facilities proposing a new discharge of
storm water associated with industrial
activity shall submit an application 180
days before that facility commences
industrial activity which may result in
a discharge of storm water associated
with that industrial activity. Facilities
described under §122.26(b)(14)(x) or
(b)(15)(i) shall submit applications at
least 90 days before the date on which
construction is to commence. Different
submittal dates may be required under
the terms of applicable general permits.
Persons proposing a new discharge are
encouraged to submit their applications
well in advance of the 90 or 180 day
requirements to avoid delay. See also
paragraph (k) of this section and
§ 122.26(c)(l)(i)(G) and (c)(l)(ii).
*****
3. Amend § 122.26 as follows:
a. Revise paragraphs (a)(9), (b)(4)(i),
(b)(7)(i], (b)(14) introductory text,
), (b)(14Hxi);
b. Redesignate paragraph (b)(15) as
paragraph (b)(20) and add new
paragraphs (b)(15) through (b)(19);
c. Revise the heading for paragraph
(c), the first sentence of paragraph (c)(l)
introductory text, the first sentence of
paragraph (c)(l)(ii) introductory text,
paragraphs (e) heading and introductory
text, (e)(l), (e)(5) introductory text, and
(eK5)(i);
d. Add paragraphs (e)(8) and (e)(9);
and
e. Revise paragraphs (f)(4), (f)(5), and
(g).
The additions and revisions read as
follows:
§ 122.26 Storm water discharges
(applicable to State NPDES programs, see
§123.25).
(a)* * *
(9)(i) On and after October 1,1994, for
discharges composed entirely of storm
water, that are not required by
paragraph (a)(l) of this section to obtain
a permit, operators shall be required to
obtain a NPDES permit only if:
(A) The discharge is from a small MS4
required to be regulated pursuant to
§122.32;
(B) The discharge is a storm water
discharge associated with small
construction activity pursuant to
paragraph (b)(15) of this section;
(Cj The Director, or in States with
approved NPDES programs either the
Director or the EPA Regional
Administrator, determines that storm
water controls are needed for the
discharge based on wasteload
allocations that are part of "total
maximum daily loads" (TMDLs) that
address the pollutant(s) of concern; or
(D) The Director, or in States with
approved NPDES programs either the
Director or the EPA Regional
Administrator, determines that the
discharge, or category of discharges
within a geographic area, contributes to
a violation of a water quality standard
or is a significant contributor of
pollutants to waters of the United
States.
(ii) Operators of small MS4s
designated pursuant to paragraphs
(a)(9)(i)(A), (a)(9)(i)(G), and (a)(9)(i)(D) of
this section shall seek coverage under
an NPDES permit in accordance with
§§ 122.33 through 122.35. Operators of
non-municipal sources designated
pursuant to paragraphs (a)(9Ki)(B),
(aK9)(i)(C), and (a)(9)(i)(D) of this
section shall seek coverage under an
NPDES permit in accordance with
paragraph (c)(l) of this section.
(iii) Operators of storm water
discharges designated pursuant to
paragraphs (a)(9)(i)(C) and (a)(9)(i)(D) of
this section shall apply to the Director
for a permit within 180 days of receipt
of notice, unless permission for a later
date is granted by the Director (see
§124.52(c) of this chapter).
(b) * * *
(4) * * *
(i) Located in an incorporated place
with a population of 250,000 or more as
determined by the 1990 Decennial
Census by the Bureau of the Census
(Appendix F of this part); or
*****
(7)* * *
(i) Located in an incorporated place
with a population of 100,000 or more
but less than 250,000, as determined by
the 1990 Decennial Census by the
Bureau of the Census (Appendix G of
this part); or
*****
(14) Storm water discharge associated
with industrial activity means the
discharge from any conveyance that is
used for collecting and conveying storm
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 6883J
water and that is directly related to
manufacturing, processing or raw
materials storage areas at an industrial
plant. The term does not include
discharges from facilities or activities
excluded from the NPDES program
under this part 122. For the categories
of industries identified in this section,
the term includes, but is not limited to,
storm water discharges from industrial
plant yards; immediate access roads and
rail lines used or traveled by carriers of
raw materials, manufactured products,
waste material, or by-products used or
created by the facility; material handling
sites; refuse sites; sites used for the
application or disposal of process waste
waters (as defined at part 401 of this
chapter); sites used for the storage and
maintenance of material handling
equipment; sites used for residual
treatment, storage, or disposal; shipping
and receiving areas; manufacturing
buildings; storage areas (including tank
farms) for raw materials, and
intermediate and final products; and
areas where industrial activity has taken
place in the past and significant
materials remain and are exposed to
storm water. For the purposes of this
paragraph, material handling activities
include storage, loading and unloading,
transportation, or conveyance of any
raw material, intermediate product,
final product, by-product or waste
product. The term excludes areas
located on plant lands separate from the
plant's industrial activities, such as
office buildings and accompanying
parking lots as long as the drainage from
the excluded areas is not mixed with
storm water drained from the above
described areas. Industrial facilities
(including industrial facilities that are
federally, State, or municipally owned
or operated that meet the description of
the facilities listed in paragraphs
(b)(14)(i) through (xi) of this section)
include those facilities designated under
the provisions of paragraph (a)(l)(v) of
this section. The following categories of
facilities are considered to be engaging
in "industrial activity" for purposes of
paragraph (b)(14):
(x) Construction activity including
clearing, grading and excavation, except
operations that result in the disturbance
of less than five acres of total land area.
Construction activity also includes the
disturbance of less than five acres of
total land area that is a part of a larger
common plan of development or sale if
the larger common plan will ultimately
disturb five acres or more;
(xi) Facilities under Standard
Industrial Classifications 20, 21, 22, 23,
2434, 25, 265, 267, 27, 283, 285, 30, 31
(except 311), 323, 34 (except 3441), 35,
36, 37 (except 373), 38, 39, and 4221-
25;
(l5) Storm water discharge associated
with small construction activity means
the discharge of storm water from:
(i) Construction activities including
clearing, grading, and excavating that
result in land disturbance of equal to or
greater than one acre and less than five
acres. Small construction activity also
includes the disturbance of less than
one acre of total land area that is part
of a larger common plan of development
or sale if the larger common plan will
ultimately disturb equal to or greater
than one and less than five acres. Small
construction activity does not include
routine maintenance that is performed
to maintain the original line and grade,
hydraulic capacity, or original purpose
of the facility. The Director may waive
the otherwise applicable requirements
in a general permit for a storm water
discharge from construction activities
that disturb less than five acres where:
(A) The value of the rainfall erosivity
factor ("R" in the Revised Universal Soil
Loss Equation) is less than five during
the period of construction activity. The
rainfall erosivity factor is determined in
accordance with Chapter 2 of
Agriculture Handbook Number 703,
Predicting Soil Erosion by Water: A
Guide to Conservation Planning With
the Revised Universal Soil Loss
Equation (RUBLE), pages 21-64, dated
January 1997. The Director of the
Federal Register approves this
incorporation by reference in
accordance with 5 U.S.C 552(a) and 1
CFR part 51. Copies may be obtained
from EPA's Water Resource Center, MaiJ
Code RC4100, 401 M St. S.W.,
Washington, DC 20460. A copy is also
available for inspection at the U.S. EPA |
Water Docket, 401 M Street S.W.,
Washington, DC. 20460, or the Office of |
the Federal Register, 800 N. Capitol
Street N.W. Suite 700, Washington, DC. I
An operator must certify to the Director |
that the construction activity will take
place during a period when the value ofl
the rainfall erosivity factor is less than
five; or
(B) Storm water controls are not
needed based on a "total maximum
daily load" (TMDL) approved or
established by EPA that addresses the
pollutant(s) of concern or, for non-
impaired waters that do not require
TMDLs, an equivalent analysis that
determines allocations for small
construction sites for the pollutant(s) of j
concern or that determines that such
allocations are not needed to protect
water quality based on consideration of |
existing in-stream concentrations,
expected growth in pollutant
contributions from all sources, and a
margin of safety. For the purpose of this |
paragraph, the pollutant(s) of concern
include sediment or a parameter that
addresses sediment (such as total
suspended solids, turbidity or siltation)
and any other pollutant that has been
identified as a cause of impairment of
any water body that will receive a
discharge from the construction activity.1
The operator must certify to the Director)
that the construction activity will take
place, and storm water discharges will
occur, within the drainage area
addressed by the TMDL or equivalent
analysis.
(ii) Any other construction activity
designated by the Director, or in States
with approved NPDES programs either
the Director or the EPA Regional
Administrator, based on the potential
for contribution to a violation of a water |
quality standard or for significant
contribution of pollutants to waters of
the United States.
EXHIBIT 1 TO §122.26(B)(15).—SUMMARY OF COVERAGE OF "STORM WATER DISCHARGES ASSOCIATED WITH SMALL
CONSTRUCTION ACTIVITY" UNDER THE NPDES STORM WATER PROGRAM
Automatic Designation: Required Nationwide
Coverage.
Potential Designation: Optional Evaluation and
Designation by the NPDES Permitting Author-
ity or EPA Regional Administrator..
Construction activities that result in a land disturbance of equal to or greater than one acre]
and less than five acres.
Construction activities disturbing less than one acre if part of a larger common plan of devel-l
opment or sale with a planned disturbance of equal to or greater than one acre and less I
than five acres, (see § 122.26(b)(15)(i).)
Construction activities that result in a land disturbance of less than one acre based on the I
potential for contribution to a violation of a water quality standard or for significant contribu-1
tion of pollutants, (see §122.26(b)(15)(ii).)
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68840 Federal Register / Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
EXHIBIT 1 TO § 122.26(B)(15).—SUMMARY OF COVERAGE OF "STORM WATER DISCHARGES ASSOCIATED WITH SMALL
CONSTRUCTION ACTIVITY" UNDER THE NPDES STORM WATER PROGRAM—Continued
Potential Waiver: Waiver from Requirements as
Determined by the NPDES Permitting Author-
By..
Any automatically designated construction activity where the operator certifies: (1) A rainfall
erosivity factor of less than five, or (2) That the activity will occur within an area where con-
trols are not needed based on a TMDL or, for non-impaired waters that do not require a
TMDL, an equivalent analysis for the pollutant(s) of concern, (see § 122.26(b)(15)(i).)
(16) Small municipal separate storm
sewer system means all separate storm
sewers that are:
(i) Owned or operated by the United
States, a State, city, town, borough,
county, parish, district, association, or
other public body (created by or
pursuant to State law) having
jurisdiction over disposal of sewage,
industrial wastes, storm water, or other
wastes, including special districts under
State law such as a sewer district, flood
control district or drainage district, or
similar entity, or an Indian tribe or an
authorized Indian tribal organization, or
a designated and approved management
agency under section 208 of the CWA
that discharges to waters of the United
States.
(ii) Not defined as "large" or
"medium" municipal separate storm
sewer systems pursuant to paragraphs
(b)(4) and (b)(7) of this section, or
designated under paragraph (a)(l)(v) of
this section.
(iii) This term includes systems
similar to separate storm sewer systems
in municipalities, such as systems at
military bases, large hospital or prison
complexes, and highways and other
thoroughfares. The term does not
include separate storm sewers in very
discrete areas, such as individual
buildings.
(17) Small MS4 means a small
municipal separate storm sewer system.
(18) Municipal separate storm sewer
system means all separate storm sewers
that are defined as "large" or "medium"
or "small" municipal separate storm
sewer systems pursuant to paragraphs
(b)(4), (b)(7), and (b)(16) of this section,
or designated under paragraph (a)(l)(v)
of this section.
(19) MS4 means a municipal separate
storm sewer system.
*****.
(c) Application requirements for storm
water discharges associated with
industrial activity and storm water
discharges associated with small
construction activity—(1) Individual
application. Dischargers of storm water
associated with industrial activity and
with small construction activity are
required to apply for an individual
permit or seek coverage under a
promulgated storm water general
permit. * * *
(ii) An operator of an existing or new
storm water discharge that is associated
with industrial activity solely under
paragraph (b)(14)(x) of this section or is
associated with small construction
activity solely under paragraph (b)(15)
of this section, is exempt from the
requirements of § 122.21(g) and
paragraph (c)(l)(i) of this section. * * *
*****
(e) Application deadlines. Any
operator of a point source required to
obtain a permit under this section that
does not have an effective NPDES
permit authorizing discharges from its
storm water outfalls shall submit an
application in accordance with the
following deadlines:
(1) Storm water discharges associated
with industrial activity, (i) Except as
provided in paragraph (e)(l)(ii) of this
section, for any storm water discharge
associated with industrial activity
identified in paragraphs (b)(14)(i)
through (xi) of this section, that is not
part of a group application as described
in paragraph (c)(2) of this section or that
is not authorized by a storm water
general permit, a permit application
made pursuant to paragraph (c) of this
section must be submitted to the
Director by October 1, 1992;
(ii) For any storm water discharge
associated with industrial activity from
a facility that is owned or operated by
a municipality with a population of less
than 100,000 that is not authorized by
a general or individual permit, other
than an airport, powerplant, or
uncontrolled sanitary landfill, the
permit application must be submitted to
the Director by March 10, 2003.
*****
(5) A permit application shall be
submitted to the Director within 180
days of notice, unless permission for a
later date is granted by the Director (see
§ 124.52(c) of this chapter), for:
(i) A storm water discharge that the
Director, or in States with approved
NPDES programs, either the Director or
the EPA Regional Administrator,
determines that the discharge
contributes to a violation of a water
quality standard or is a significant
contributor of pollutants to waters of the
United States (see paragraphs (a)(l)(v)
and (b)(15)(ii) of this section);
(8) For any storm water discharge
associated with small construction
activity identified in paragraph (b)(15)(i)
of this section, see § 122.21(c)(l).
Discharges from these sources require
permit authorization by March 10, 2003,
unless designated for coverage before
then.
(9) For any discharge from a regulated
small MS4, the permit application made
under § 122.33 must be submitted to the
Director by:
(i) March 10, 2003 if designated under
§ 122.32(a)(l) unless your MS4 serves a
jurisdiction with a population under
10,000 and the NPDES permitting
authority has established a phasing
schedule under § 123.35(d)(3) (see
§122.33(c)(l));or
(ii) Within 180 days of notice, unless
the NPDES permitting authority grants a
later date, if designated under
§ 122.32(a)(2) (see § 122.33(c)(2)).
(f) * * *
(4) Any person may petition the
Director for the designation of a large,
medium, or small municipal separate
storm sewer system as defined by
paragraph (b)(4)(iv), (b)(7)(iv), or (b)(16)
of this section.
(5) The Director shall make a final
determination on any petition received
under this section within 90 days after
receiving the petition with the
exception of petitions to designate a
small MS4 in which case the Director
shall make a final determination on the
petition within 180 days after its
receipt.
(g) Conditional exclusion for "no
exposure" of industrial activities and
materials to storm water. Discharges
composed entirely of storm water are
not storm water discharges associated
with industrial activity if there is "no
exposure1' of industrial materials and
activities to rain, snow, snowmelt and/
or runoff, and the discharger satisfies
the conditions in paragraphs (g)(l)
through (g)(4) of this section. "No
exposure" means that all industrial
materials and activities are protected by
a storm resistant shelter to prevent
exposure to rain, snow, snowmelt, and/
or runoff. Industrial materials or
activities include, but are not limited to,
material handling equipment or
activities, industrial machinery, raw
materials, intermediate products, by-
products, final products, or waste
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68841
products. Material handling activities
include the storage, loading and
unloading, transportation, or
conveyance of any raw material,
intermediate product, final product or
waste product.
(1) Qualification. To quality for this
exclusion, the operator of the discharge
must:
(i) Provide a storm resistant shelter to
protect industrial materials and
activities from exposure to rain, snow,
snow melt, and runoff;
(ii) Complete and sign (according to
§ 122.22) a certification that there are no
discharges of storm water contaminated
by exposure to industrial materials and
activities from the entire facility, except
as provided in paragraph (g)(2) of this
section;
(iii) Submit the signed certification to
the NPDES permitting authority once
every five years;
(iv) Allow the Director to inspect the
facility to determine compliance with
the "no exposure" conditions;
(v) Allow the Director to make any
"no exposure" inspection reports
available to the public upon request;
and
(vi) For facilities that discharge
through an MS4, upon request, submit
a copy of the certification of "no
exposure" to the MS4 operator, as well
as allow inspection and public reporting
by the MS4 operator.
(2) Industrial materials and activities
not requiring storm resistant shelter. To
qualify for this exclusion, storm
resistant shelter is not required for:
(i) Drums, barrels, tanks, and similar
containers that are tightly sealed,
provided those containers are not
deteriorated and do not leak ("Sealed"
means banded or otherwise secured and
without operational taps or valves);
(ii) Adequately maintained vehicles
used in material handling; and
(iii) Final products, other than
products that would be mobilized in
storm water discharge (e.g., rock salt).
(3) Limitations, (i) Storm water
discharges from construction activities
identified in paragraphs (b)(14)(x) and
(b)(15) are not eligible for this
conditional exclusion.
(ii) This conditional exclusion from
the requirement for an NPDES permit is
available on a facility-wide basis only,
not for individual outfalls. If a facility
has some discharges of storm water that
would otherwise be "no exposure"
discharges, individual permit
requirements should be adjusted
accordingly.
(iii) If circumstances change and
industrial materials or activities become
exposed to rain, snow, snow melt, and/
or runoff, the conditions for this
exclusion no longer apply. In such
cases, the discharge becomes subject to
enforcement for un-permitted discharge.
Any conditionally exempt discharger
who anticipates changes in
circumstances should apply for and
obtain permit authorization prior to the
change of circumstances.
(iv) Notwithstanding the provisions of
this paragraph, the NPDES permitting
authority retains the authority to require
permit authorization (and deny this
exclusion) upon making a determination
that the discharge causes, has a
reasonable potential to cause, or
contributes to an instream excursion
above an applicable water quality
standard, including designated uses.
(4) Certification. The no exposure
certification must require the
submission of the following
information, at a minimum, to aid the
NPDES permitting authority in
determining if the facility qualifies for
the no exposure exclusion:
(i) The legal name, address and phone
number of the discharger (see
§122.21(b));
(ii) The facility name and address, the
county name and the latitude and
longitude where the facility is located;
(iii) The certification must indicate
that none of the following materials or
activities are, or will be in the
foreseeable future, exposed to
precipitation:
(A) Using, storing or cleaning
industrial machinery or equipment, and
areas where residuals from using,
storing or cleaning industrial machinery
or equipment remain and are exposed to
storm water;
(B) Materials or residuals on the
ground or in storm water inlets from
spills/leaks;
(C) Materials or products from past
industrial activity;
(D) Material handling equipment
(except adequately maintained
vehicles);
(E) Materials or products during
loading/unloading or transporting
activities;
(F) Materials or products stored
outdoors (except final products
intended for outside use, e.g., new cars,
where exposure to storm water does not
result in the discharge of pollutants);
(G) Materials contained in open,
deteriorated or leaking storage drums,
barrels, tanks, and similar containers;
(H) Materials or products handled/
stored on roads or railways owned or
maintained by the discharger;
(I) Waste material (except waste in
covered, non-leaking containers, e.g.,
dumpsters);
(J) Application or disposal of process
wastewater (unless otherwise
permitted); and
(K) Particulate matter or visible
deposits of residuals from roof stacks/
vents not otherwise regulated, i.e.,
under an air quality control permit, and
evident in the storm water outflow;
(iv) All "no exposure" certifications
must include the following certification
statement, and be signed in accordance
with the signatory requirements of
§ 122.22: "I certify under penalty of law
that I have read and understand the
eligibility requirements for claiming a
condition of "no exposure" and
obtaining an exclusion from NPDES
storm water permitting; and that there
are no discharges of storm water
contaminated by exposure to industrial
activities or materials from the
industrial facility identified in this
document (except as allowed under
paragraph (g)(2)) of this section. I
understand that I am obligated to submit
a no exposure certification form once
every five years to the NPDES
permitting authority and, if requested,
to the operator of the local MS4 into
which this facility discharges (where
applicable). I understand that I must
allow the NPDES permitting authority,
or MS4 operator where the discharge is
into the local MS4, to perform
inspections to confirm the condition of
no exposure and to make such
inspection reports publicly available
upon request. I understand that I must
obtain coverage under an NPDES permit
prior to any point source discharge of
storm water from the facility. I certify
under penalty of law that this document
and all attachments were prepared
under my direction or supervision in
accordance with a system designed to
assure that qualified personnel properly
gathered and evaluated the information
submitted. Based upon my inquiry of
the person or persons who manage the
system, or those persons directly
involved in gathering the information,
the information submitted is to the best
of my knowledge and belief true,
accurate and complete. I am aware there
are significant penalties for submitting
false information, including the
possibility of fine and imprisonment for
knowing violations."
4. Revise § 122.28(b)(2)(v) to read as
follows:
§ 122.28 General permits (applicable to
State NPDES programs, see § 123.25).
*****
(b) * * *
(2) * * .*
(v) Discharges other than discharges
from publicly owned treatment works,
combined sewer overflows, municipal
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68842 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
separate storm sewer systems, primary
industrial facilities, and storm water
discharges associated with industrial
activity, may, at the discretion of the '
Director, be authorized to discharge
under a general permit without
submitting a notice of intent where the
Director finds that a notice of intent
requirement would be inappropriate. In
making such a finding, the Director
shall consider: the type of discharge; the
expected nature of the discharge; the
potential for toxic and conventional
pollutants in the discharges; the
expected volume of the discharges;
other means of identifying discharges
covered by the permit; and the
estimated number of discharges to be
covered by the permit. The Director
shall provide in the public notice of the
general permit the reasons for not
requiring a notice of intent.
*****
5. Add §§ 122.30 through 122.37 to
subpart B to read as follows:
§ 122.30 What are the objectives of the
storm water regulations for small MS4s?
(a) Sections 122.30 through 122.37 are
written in a "readable regulation"
format that includes both rule
requirements and EPA guidance that is
not legally binding. EPA has clearly
distinguished its recommended
guidance from the rule requirements by
putting the guidance in a separate
paragraph headed by the word
"guidance".
{b) Under the statutory mandate in
section 402(p)(6) of the Clean Water Act,
the purpose of this portion of the storm
water program is to designate additional
sources that need to be regulated to
protect water quality and to establish a
comprehensive storm water program to
regulate these sources. (Because the
storm water program is part of the
National Pollutant Discharge
Elimination System (NPDES) Program,
you should also refer to § 122.1 which
addresses the broader purpose of the
NPDES program.)
(c) Storm water runoff continues to
harm the nation's waters. Runoff from
lands modified by human activities can
harm surface water resources in several
ways including by changing natural
hydrologic patterns and by elevating
pollutant concentrations and loadings.
Storm water runoff may contain or
mobilize high levels of contaminants,
such as sediment, suspended solids,
nutrients, heavy metals, pathogens,
toxins, oxygen-demanding substances,
and floatables.
(d) EPA strongly encourages
partnerships and the watershed
approach as the management framework
for efficiently, effectively, and
consistently protecting and restoring
aquatic ecosystems and protecting
public health.
§ 122.31 As a Tribe, what is my role under
the NPDES storm water program?
As a Tribe you may:
(a) Be authorized to operate the
NPDES program including the storm
water program, after EPA determines
that you are eligible for treatment in the
same manner as a State under §§ 123.31
through 123.34 of this chapter. (If you
do not have an authorized NPDES
program, EPA implements the program
for discharges on your reservation as
well as otiier Indian country, generally.);
(b) Be classified as an owner of a
regulated small MS4, as defined in
§ 122.32. (Designation of your Tribe as
an owner of a small MS4 for purposes
of this part is an approach that is
consistent with EPA's 1984 Indian
Policy of operating on a government-to-
government basis with EPA looking to
Tribes as the lead governmental
authorities to address environmental
issues on their reservations as
appropriate. If you operate a separate
storm sewer system that meets the
definition of a regulated small MS4, you
are subject to the requirements under
§§ 122.33 through 122.35. If you are not
designated as a regulated small MS4,
you may ask EPA to designate you as
such for the purposes of this part.); or
(c) Be a discharger of storm water
associated with industrial activity or
small construction activity under
§§ 122.26(b)(14) or (b)(15), in which
case you must meet the applicable
requirements. Within Indian country,
the NPDES permitting authority is
generally EPA, unless you are
authorized to administer the NPDES
program.
§ 122.32 As an operator of a small MS4,
am I regulated under the NPDES storm
water program?
(a) Unless you qualify for a waiver
under paragraph (c) of this section, you
are regulated if you operate a small
MS4, including but not limited to
systems operated by federal, State,
Tribal, and local governments,
including State departments of
transportation; and:
(1) Your small MS4 is located in an
urbanized area as determined by the
latest Decennial Census by the Bureau
of the Census. (If your small MS4 is not
located entirely within an urbanized
area, only the portion that is within the
urbanized area is regulated); or
(2) You are designated by the NPDES
permitting authority, including where
the designation is pursuant to
§§ 123.35(b)(3) and (b)(4) of this chapter,
or is based upon a petition under
§122.26(f).
(b) You may be the subject of a
petition to the NPDES permitting
authority to require an NPDES permit
for your discharge of storm water. If the
NPDES permitting authority determines
that you need a permit, you are required
to comply with §§ 122.33 through
122.35.
(c) The NPDES permitting authority
may waive the requirements otherwise
applicable to you if you meet the criteria
of paragraph (d) or (e) of this section. If
you receive a waiver under this section,
you may subsequently be required to
seek coverage under an NPDES permit
in accordance with § 122.33(a) if
circumstances change. (See also
§ 123.35(b) of this chapter.)
(d) The NPDES permitting authority
may waive permit coverage if your MS4
serves a population of less than 1,000
within the urbanized area and you meet
the following criteria:
(1) Your system is not contributing
substantially to the pollutant loadings of
a physically interconnected MS4 that is
regulated by the NPDES storm water
program (see § 123.35(b)(4) of this
chapter); and
(2) If you discharge any pollutant(s)
that have been identified as a cause of
impairment of any water body to which
you discharge, storm water controls are
not needed based on wasteload
allocations that are part of an EPA
approved or established "total
maximum daily load" (TMDL) that
addresses the pollutant(s) of concern.
(e) The NPDES permitting authority
may waive permit coverage if your MS4
serves a population under 10,000 and
you meet the following criteria:
(1) The permitting authority has
evaluated all waters of the U.S.,
including small streams, tributaries,
lakes, and ponds, that receive a
discharge from your MS4;
(2) For all such waters, the permitting
authority has determined that storm
water controls are not needed based on
wasteload allocations that are part of an
EPA approved or established TMDL that
addresses the pollutant(s) of concern or,
if a TMDL has not been developed or
approved, an equivalent analysis that
determines sources and allocations for
the pollutant(s) of concern;
(3) For the purpose of this paragraph
(e), the pollutant(s) of concern include
biochemical oxygen demand (BOD),
sediment or .a parameter that addresses
sediment (such as total suspended
solids, turbidity or siltation), pathogens,
oil and grease, and any pollutant that
has been identified as a cause of
impairment of any water body that will
receive a discharge from your MS4; and
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 688431
(4) The permitting authority has
determined that future discharges from
your MS4 do not have the potential to
result in exceedances of water quality •
standards, including impairment of
designated uses, or other significant
water quality impacts, including habitat
and biological impacts.
§ 122.33 If I am an operator of a regulated
small MS4, how do I apply for an NPDES
permit and when do I have to apply?
(a) If you operate a regulated small
MS4 under § 122.32, you must seek
coverage under a NPDES permit issued
by your NPDES permitting authority. If
you are located in an NPDES authorized
State, Tribe, or Territory, then that State,
Tribe, or Territory is your NPDES
permitting authority. Otherwise, your
NPDES permitting authority is the EPA
Regional Office.
(b) You must seek authorization to
discharge under a general or individual
NPDES permit, as follows:
(1) If your NPDES permitting
authority has issued a general permit
applicable to your discharge and you are
seeking coverage under the general
permit, you must submit a Notice of
Intent (NOI) that includes the
information on your best management
practices and measurable goals required
by § 122.34(d). You may file your own
NOI, or you and other municipalities or
governmental entities may jointly
submit an NOI. If you want to share
responsibilities for meeting the
minimum measures with other
municipalities or governmental entities.
you must submit an NOI that describes
which minimum measures you will
implement and identify the entities that
will implement the other minimum
measures within the area served by your
MS4. The general permit will explain
any other steps necessary to obtain
permit authorization.
(2)(i) If you are seeking authorization
to discharge under an individual permit
and wish to implement a program under
§ 122.34, you must submit an
application to your NPDES permitting
authority that includes the information
required under §§ 122.21 (f) and
122.34(d), an estimate of square mileage
served by your small MS4, and any
additional information that your NPDES
permitting authority requests. A storm
sewer map that satisfies the requirement
of § 122.34(b)(3)(i) will satisfy the map
requirement in § 122.21(f)(7).
(ii) If you are seeking authorization to
discharge under an individual permit
and wish to implement a program that
is different from the program under
§ 122.34, you will need to comply with
the permit application requirements of
§ 122.26(d). You must submit both Parts
of the application requirements in
§§ 122.26(d)(l) and (2) by March 10,
2003. You do not need to submit the
information required by
§§ 122.26(d)(l)(ii) and (d)(2) regarding
your legal authority, unless you intend
for the permit writer to take such
information into account when
developing your other permit
conditions.
(iii) If allowed by your NPDES
permitting authority, you and another
regulated entity may jointly apply under
either paragraph (b)(2}(i) or (b)(2)(ii) of
this section to be co-permittees under an
individual permit.
(3) If your small MS4 is in the same
urbanized area as a medium or large
MS4 with an NPDES storm water permit
and that other MS4 is willing to have
you participate in its storm water
program, you and the other MS4 may
jointly seek a modification of the other
MS4 permit to include you as a limited
co-permittee. As a limited co-permittee,
you will be responsible for compliance
with the permit's conditions applicable
to your jurisdiction. If you choose this
option you will need to comply with the
permit application requirements of
§ 122.26, rather than the requirements of
§ 122.34. You do not need to comply
with the specific application
requirements of § 122.26(d)(l)(iii) and
(iv) and (d)(2)(iii) (discharge
characterization). You may satisfy the
requirements in § 122.26 (d)(l)(v) and
(d)(2)(iv) (identification of a
management program) by referring to
the other MS4's storm water
management program.
(4) Guidance: In referencing an MS4's
storm water management program, you
should briefly describe how the existing
plan will address discharges from your
small MS4 or would need to be
supplemented in order to adequately
address your discharges. You should
also explain your role in coordinating
storm water pollutant control activities
in your MS4, and detail the resources
available to you to accomplish the plan.
(c) If you operate a regulated small
MS4:
(1) Designated under § 122.32(a)(l),
you must apply for coverage under an
NPDES permit, or apply for a
modification of an existing NPDES
permit under paragraph (b)(3) of this
section by March 10, 2003, unless your
MS4 serves a jurisdiction with a
population under 10,000 and the
NPDES permitting authority has
established a phasing schedule under
§ 123.35(d)(3) of this chapter.
(2) Designated under § 122.32(a)(2),
you must apply for coverage under an
NPDES permit, or apply for a
modification of an existing NPDES
permit under paragraph (b)(3) of this
section, within 180 days of notice,
unless the NPDES permitting authority
grants a later date.
§ 122.34 As an operator of a regulated
small MS4, what will my NPDES MS4 storm
water permit require?
(a) Your NPDES MS4 permit will
require at a minimum that you develop,
implement, and enforce a storm water
management program designed to
reduce the discharge of pollutants from
your MS4 to the maximum extent
practicable (MEP), to protect water
quality, and to satisfy the appropriate
water quality requirements of the Clean
Water Act. Your storm water
management program must include the
.minimum control measures described in |
paragraph (b) of this section unless you
apply for a permit under § 122.26(d).
For purposes of this section, narrative
effluent limitations requiring
implementation of best management
practices (BMPs) are generally the most
appropriate form of effluent limitations
when designed to satisfy technology
requirements (including reductions of
pollutants to the maximum extent
practicable) and to protect water quality. I
Implementation of best management
practices consistent with the provisions
of the storm water management program
required pursuant to this section and
the provisions of the permit required
pursuant to § 122.33 constitutes
compliance with the standard of
reducing pollutants to the "maximum
extent practicable." Your NPDES
permitting authority will specify a time
period of up to 5 years from the date of
permit issuance for you to develop and
implement your program.
(b) Minimum control measures—(1)
Public education and outreach on storm
water impacts, (i) You must implement
a public education program to distribute
educational materials to the community
or conduct equivalent outreach
activities about the impacts of storm
water discharges on water bodies and
the steps that the public can take to
reduce pollutants in storm water runoff.
(ii) Guidance: You may use storm
water educational materials provided by
your State, Tribe, EPA, environmental,
public interest or trade organizations, or
other MS4s. The public education
program should inform individuals and
households about the steps they can
take to reduce storm water pollution,
such as ensuring proper septic system
maintenance, ensuring the proper use
and disposal of landscape and garden
chemicals including fertilizers and
pesticides, protecting and restoring
riparian vegetation, and properly
disposing of used motor oil or
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68844 Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
household hazardous wastes. EPA
recommends that the program inform
individuals and groups how to become
involved in local stream and beach
restoration activities as well as activities
that are coordinated by youth service
and conservation corps or other citizen
groups. EPA recommends that the
public education program be tailored,
using a mix of locally appropriate
strategies, to target specific audiences
and communities. Examples of
strategies include distributing brochures
or fact sheets, sponsoring speaking
engagements before community groups,
providing public service
announcements, implementing
educational programs targeted at school
age children, and conducting
community-based projects such as storm
drain stenciling, and watershed and
beach cleanups. In addition, EPA
recommends that some of the materials
or outreach programs be directed toward
targeted groups of commercial,
industrial, and institutional entities
likely to have significant storm water
impacts. For example, providing
information to restaurants on the impact
of grease clogging storm drains and to
garages on the impact of oil discharges.
You are encouraged to tailor your
outreach program to address the
viewpoints and concerns of all
communities, particularly minority and
disadvantaged communities, as well as
any special concerns relating to
children.
(2) Public involvement/participation.
(i] You must, at a minimum, comply
with State, Tribal and local public
notice requirements when
implementing a public involvement/
participation program.
(ii) Guidance: EPA recommends that
the public be included in developing,
implementing, and reviewing your
storm water management program and
that the public participation process
should make efforts to reach out and
engage all economic and ethnic groups.
Opportunities for members of the public
to participate in program development
and implementation include serving as
citizen representatives on a local storm
water management panel, attending
public hearings, working as citizen
volunteers to educate other individuals
about the program, assisting in program
coordination with other pre-existing
programs, or participating in volunteer
monitoring efforts, (Citizens should
obtain approval where necessary for
lawful access to monitoring sites.)
(3) Illicit discharge detection and
elimination, (i) You must develop,
implement and enforce a program to
detect and eliminate illicit discharges
(as defined at § 122.26(b)(2)) into your
small MS4.
(ii) You must:
(A) Develop, if not already completed,
a storm sewer system map, showing the
location of all outfalls and the names
and location of all waters of the United
States that receive discharges from those
outfalls;
(B) To the extent allowable under
State, Tribal or local law, effectively
prohibit, through ordinance, or other
regulatory mechanism, non-storm water
discharges into your storm sewer system
and implement appropriate enforcement
procedures and actions;
(C) Develop and implement a plan to
detect and address non-storm water
discharges, including illegal dumping,
to your system; and
(D) Inform public employees,
businesses, and the general public of
hazards associated with illegal
discharges and improper disposal of
waste.
(iii) You need address the following
categories of non-storm water discharges
or flows (i.e., illicit discharges) only if
you identify them as significant
contributors of pollutants to your small
MS4: water line flushing, landscape
irrigation, diverted stream flows, rising
ground waters, uncontaminated ground
water infiltration (as defined at 40 CFR
35.2005(20)), uncontaminated pumped
ground water, discharges from potable
water sources, foundation drains, air
conditioning condensation, irrigation
water, springs, water from crawl space
pumps, footing drains, lawn watering,
individual residential car washing,
flows from riparian habitats and
wetlands, dechlorinated swimming pool
discharges, and street wash water
(discharges or flows from fire fighting
activities are excluded from the effective
prohibition against non-storm water and
need only be addressed where they are
identified as significant sources of
pollutants to waters of the United
States).
(iv) Guidance: EPA recommends that
the plan to detect and address illicit
discharges include the following four
components: procedures for locating
priority areas likely to have illicit
discharges; procedures for tracing the
source of an illicit discharge; procedures
for removing the source of the
discharge; and procedures for program
evaluation and assessment. EPA
recommends visually screening outfalls
during dry weather and conducting field
tests of selected pollutants as part of the
procedures for locating priority areas.
Illicit discharge education actions may
include storm drain stenciling, a
program to promote, publicize, and
facilitate public reporting of illicit
connections or discharges, and
distribution of outreach materials.
(4) Construction site storm water
runoff control, (i) You must develop,
implement, and enforce a program to
reduce pollutants in any storm water
runoff to your small MS4 from
construction activities that result in a
land disturbance of greater than or equal
to one acre. Reduction of storm water
discharges from construction activity
disturbing less than one acre must be
included in your program if that
construction activity is part of a larger
common plan of development or sale
that would disturb one acre or more. If
the NPDES permitting authority waives
requirements for storm water discharges
associated with small construction
activity in accordance with
§ 122.26(b)(15)(i), you are not required
to develop, implement, and/or enforce a
program to reduce pollutant discharges
from such sites.
(ii) Your program must include the
development and implementation of, at
a minimum:
(A) An ordinance or other regulatory
mechanism to require erosion and
sediment controls, as well as sanctions
to ensure compliance, to the extent
allowable under State, Tribal, or local
law;
(B) Requirements for construction site
operators to implement appropriate
erosion and sediment control best
management practices;
(C) Requirements for construction site
operators to control waste such as
discarded building materials, concrete
truck washout, chemicals, litter, and
sanitary waste at the construction site
that may cause adverse impacts to water
quality;
(D) Procedures for site plan review
which incorporate consideration of
potential water quality impacts;
(E) Procedures for receipt and
consideration of information submitted
by the public, and
(F) Procedures for site inspection and
enforcement of control measures.
(iii) Guidance: Examples of sanctions
to ensure compliance include non-
monetary penalties, fines, bonding
requirements and/or permit denials for
non-compliance. EPA recommends that
procedures for site plan review include
the review of individual pre-
construction site plans to ensure
consistency with local sediment and
erosion control requirements.
Procedures for site inspections and
enforcement of control measures could
include steps to identify priority sites
for inspection and enforcement based
on the nature of the construction
activity, topography, and the
characteristics of soils and receiving
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/RuIes and Regulations 68845J
water quality. You are encouraged to
provide appropriate educational and
training measures for construction site
operators. You may wish to require a '
storm water pollution prevention plan
for construction sites within your
jurisdiction that discharge into your
system. See § 122.44(s) (NPDES
permitting authorities' option to
incorporate qualifying State, Tribal and
local erosion and sediment control
programs into NPDES permits for storm
water discharges from construction
sites). Also see § 122.35(b) (The NPDES
permitting authority may recognize that
another government entity, including
the permitting authority, may be
responsible for implementing one or
more of the minimum measures on your
behalf.)
(5) Post-construction storm water
management in new development and
redevelopment.
(5) You must develop, implement, and
enforce a program to address storm
water runoff from new development and
redevelopment projects that disturb
greater than or equal to one acre,
including projects less than one acre
that are part of a larger common plan of
development or sale, that discharge into
your small MS4. Your program must
ensure that controls are in place that
would prevent or minimize water
quality impacts.
(ii) You must:
(A) Develop and implement strategies
which include a combination of
structural and/or non-structural best
management practices (BMPs)
appropriate for your community;
(B) Use an ordinance or other
regulatory mechanism to address post-
construction runoff from new
development and redevelopment
projects to the extent allowable under
State, Tribal or local law; and
(C) Ensure adequate long-term
operation and maintenance of BMPs.
(iii) Guidance: If water quality
impacts are considered from the
beginning stages of a project, new
development and potentially
redevelopment provide more
opportunities for water quality
protection. EPA recommends that the
BMPs chosen: be appropriate for the
local community; minimize water
quality impacts; and attempt to
maintain pre-development runoff
conditions. In choosing appropriate
BMPs, EPA encourages you to
participate in locally-based watershed
planning efforts which attempt to
involve a diverse group of stakeholders
including interested citizens. When
developing a program that is consistent
with this measure's intent, EPA
recommends that you adopt a planning
process that identifies the
municipality's program goals (e.g.,
minimize water quality impacts
resulting from post-construction runoff
from new development and
redevelopment), implementation
strategies (e.g., adopt a combination of
structural and/or non-structural BMPs),
operation and maintenance policies and
procedures, and enforcement
procedures. In developing your
program, you should consider assessing
existing ordinances, policies, programs
and studies that address storm water
runoff quality. In addition to assessing
these existing documents and programs,
you should provide opportunities to the
public to participate in the development
of the program. Non-structural BMPs are
preventative actions that involve
management and source controls such
as: policies and ordinances that provide
requirements and standards to direct
growth to identified areas, protect
sensitive areas such as wetlands and
riparian areas, maintain and/or increase
open space (including a dedicated
funding source for open space
acquisition), provide buffers along
sensitive water bodies, minimize
impervious surfaces, and minimize
disturbance of soils and vegetation;
policies or ordinances that encourage
infill development in higher density
urban areas, and areas with existing
infrastructure; education programs for
developers and the public about project
designs that minimize water quality
impacts; and measures such as
minimization of percent impervious
area after development and
minimization of directly connected
impervious areas. Structural BMPs
include: storage practices such as wet
ponds and extended-detention outlet
structures; filtration practices such as
grassed swales, sand filters and filter
strips; and infiltration practices such as
infiltration basins and infiltration
trenches. EPA recommends that you
ensure the appropriate implementation
of the structural BMPs by considering
some or all of the following: pre-
construction review of BMP designs;
inspections during construction to
verify BMPs are built as designed; post-
construction inspection and
maintenance of BMPs; and penalty
provisions for the noncompliance with
design, construction or operation and
maintenance. Storm water technologies
are constantly being improved, and EPA
recommends that your requirements be
responsive to these changes,
developments or improvements in
control technologies.
(6) Pollution prevention/good
housekeeping for municipal operations.
(i) You must develop and implement an |
operation and maintenance program
that includes a training component and
has the ultimate goal of preventing or
reducing pollutant runoff from
municipal operations. Using training
materials that are available from EPA,
your State, Tribe, or other organizations,]
your program must include employee
training to prevent and reduce storm
water pollution from activities such as
park and open space maintenance, fleet
and building maintenance, new
construction and land disturbances, and|
storm water system maintenance.
(ii) Guidance: EPA recommends that,
at a minimum, you consider the
following in developing your program:
maintenance activities, maintenance
schedules, and long-term inspection
procedures for structural and non-
structural storm water controls to
reduce floatables and other pollutants
discharged from your separate storm
sewers; controls for reducing or
eliminating the discharge of pollutants
from streets, roads, highways, municipal]
parking lots, maintenance and storage
yards, fleet or maintenance shops with
outdoor storage areas, salt/sand storage
locations and snow disposal areas
operated by you, and waste transfer
stations; procedures for properly
disposing of waste removed from the
separate storm sewers and areas listed
above (such as dredge spoil,
accumulated sediments, floatables, and
other debris); and ways to ensure that
new flood management projects assess
the impacts on water quality and
examine existing projects for
incorporating additional water quality
protection devices or practices.
Operation and maintenance should be
an integral component of all storm water I
management programs. This measure is
intended to improve the efficiency of
these programs and require new
programs where necessary. Properly
developed and implemented operation
and maintenance programs reduce the
risk of water quality problems.
(c) If an existing qualifying local
program requires you to implement one
or more of the minimum control
measures of paragraph (b) of this
section, the'NPDES permitting authority
may include conditions in your NPDES
permit that direct you to follow that
qualifying program's requirements
rather than the requirements of
paragraph (b) of this section. A
qualifying local program is a local, State
or Tribal municipal storm water
management program that imposes, at a
minimum, the relevant requirements of
paragraph (b) of this section.
(d)(l) In your permit application
(either a notice of intent for coverage
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68846 Federal Register/Vol. 64. No. 235/Wednesday, December 8, 1999/Rules and Regulations
under a general permit or an individual
permit application), you must identify
and submit to your NPDES permitting
authority the following information: •
(i) The best management practices
(BMPs) that you or another entity will
implement for each of the storm water
minimum control measures at
paragraphs (b)(l) through (b)(6) of this
section;
(ii) The measurable goals for each of
the BMPs including, as appropriate, the
months and years in which you will
undertake required actions, including
interim milestones and the frequency of
the action; and
(iii) The person or persons
responsible for implementing or
coordinating your storm water
management program.
(2) If you obtain coverage under a
general permit, you are not required to
meet any measurable goal(s) identified
in your notice of intent in order to
demonstrate compliance with the
minimum control measures in
paragraphs (b)(3) through (b)(6) of this
section unless, prior to submitting your
NOI, EPA or your State or Tribe has
provided or issued a menu of BMPs that
addresses each such minimum measure.
Even if no regulatory authority issues
the menu of BMPs, however, you still
must comply with other requirements of
the general permit, including good faith
implementation of BMPs designed to
comply with the minimum measures.
(3) Guidance: Either EPA or your State
or Tribal permitting authority will
provide a menu of BMPs. You may
choose BMPs from the menu or select
others that satisfy the minimum control
measures.
(e)(l) You must comply with any
more stringent effluent limitations in
your permit, including permit
requirements that modify, or are in
addition to, the minimum control
measures based on an approved total
maximum daily load (TMDL) or
equivalent analysis. The permitting
authority may include such more
stringent limitations based on a TMDL
or equivalent analysis that determines
such limitations are needed to protect
water quality.
(2) Guidance: EPA strongly
recommends that until the evaluation of
the storm water program in § 122.37, no
additional requirements beyond the
minimum control measures be imposed
on regulated small MS4s without the
agreement of the operator of the affected
small MS4, except where an approved
TMDL or equivalent analysis provides
adequate information to develop more
specific measures to protect water
quality.
(f) You must comply with other
applicable NPDES permit requirements,
standards and conditions established in
the individual or general permit,
developed consistent with the
provisions of §§ 122.41 through 122.49,
as appropriate.
(g) Evaluation and assessment— (1)
Evaluation. You must evaluate program
compliance, the appropriateness of your
identified best management practices,
and progress towards achieving your
identified measurable goals.
Note to Paragraph (g)(l): The NPDES
permitting authority may determine
monitoring requirements for you in
accordance with State/Tribal monitoring
plans appropriate to your watershed.
Participation in a group monitoring program
is encouraged.
(2) Recordkeeping. You must keep
records required by the NPDES permit
for at least 3 years. You must submit
your records to the NPDES permitting
authority only when specifically asked
to do so. You must make your records,
including a description of your storm
water management program, available to
the public at reasonable times during
regular business hours (see § 122.7 for
confidentiality provision). (You may
assess a reasonable charge for copying.
You may require a member of the public
to provide advance notice.)
(3) Reporting. Unless you are relying
on another entity to satisfy your NPDES
permit obligations under § 122.35(a),
you must submit annual reports to the
NPDES permitting authority for your
first permit term. For subsequent permit
terms, you must submit reports in year
two and four unless the NPDES
permitting authority requires more
frequent reports. Your report must
include:
(i) The status of compliance with
permit conditions, an assessment of the
appropriateness of your identified best
management practices and progress
towards achieving your identified
measurable goals for each of the
minimum control measures;
(ii) Results of information collected
and analyzed, including monitoring
data, if any, during the reporting period;
(iii) A summary of the storm water
activities you plan to undertake during
the next reporting cycle;
(iv) A change in any identified best
management practices or measurable
goals for any of the minimum control
measures; and
(v) Notice that you are relying on
another governmental entity to satisfy
some of your permit obligations (if
applicable).
§ 122.35 As an operator of a regulated
small MS4, may I share the responsibility to
implement the minimum control measures
with other entities?
(a) You may rely on another entity to
satisfy your NPDES permit obligations
to implement a minimum control
measure if:
(1) The other entity, in fact,
implements the control measure;
(2) The particular control measure, or
component thereof, is at least as
stringent as the corresponding NPDES
permit requirement; and
(3) The other entity agrees to
implement the control measure on your
behalf. In the reports you must submit
under § 122.34(g)(3), you must also
specify that you rely on another entity
to satisfy some of your permit
obligations. If you are relying on another
governmental entity regulated under
section 122 to satisfy all of your permit
obligations, including your obligation to
file periodic reports required by
§ 122.34(g)(3), you must note that fact in
your NOI, but you are not required to
file the periodic reports. You remain
responsible for compliance with your
permit obligations if the other entity
fails to implement the control measure
(or component thereof). Therefore, EPA
encourages you to enter into a legally
binding agreement with that entity if
you want to minimize any uncertainty
about compliance with your permit.
(b) In some cases, the NPDES
permitting authority may recognize,
either in your individual NPDES permit
or in an NPDES general permit, that
another governmental entity is
responsible under an NPDES permit for
implementing one or more of the
minimum control measures for your
small MS4 or that the permitting
authority itself is responsible. Where the
permitting authority does so, you are
not required to include such minimum
control measure(s) in your storm water
management program. (For example, if a
State or Tribe is subject to an NPDES
permit that requires it to administer a
program to control construction site
runoff at the State or Tribal level and
that program satisfies all of the
requirements of § 122.34(b)(4), you
could avoid responsibility for the
construction measure, but would be
responsible for the remaining minimum
control measures.) Your permit may be
reopened and modified to include the
requirement to implement a minimum
control measure if the entity fails to
implement it.
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 6884'
§ 122.36 As an operator of a regulated
small MS4, what happens if I don't comply
with the application or permit requirements
In §§122.33 through 122.35?
NPDES permits are federally
enforceable. Violators may be subject to
the enforcement actions and penalties
described in Clean Water Act sections
309 (b), (c), and (g) and 505, or under
applicable State, Tribal, or local law.
Compliance with a permit issued
pursuant to section 402 of the Clean
Water Act is deemed compliance, for
purposes of sections 309 and 505, with
sections 301, 302, 306, 307, and 403,
except any standard imposed under
section 307 for toxic pollutants
injurious to human health. If you are
covered as a co-permittee under an
individual permit or under a general
permit by means of a joint Notice of
Intent you remain subject to the
enforcement actions and penalties for
the failure to comply with the terms of
the permit in your jurisdiction except as
set forth in §122.35(b).
§ 122.37 Will the small MS4 storm water
program regulations at §§122.32 through
122.36 and § 123.35 of this chapter change
in the future?
EPA will evaluate the small MS4
regulations at §§ 122.32 through 122.36
and § 123.35 of this chapter after
December 10,2012 and make any
necessary revisions. (EPA intends to
conduct an enhanced research effort and
compile a comprehensive evaluation of
the NPDES MS4 storm water program.
EPA will re-evaluate the regulations
based on data from the NPDES MS4
storm water program, from research on
receiving water impacts from storm
water, and the effectiveness of best
management practices (BMPs), as well
as other relevant information sources.)
6. In § 122.44, redesignate paragraphs
(k)(2) and (k)(3) as paragraphs (k)(3) and
(k)(4), remove the comma at the end of
newly redesignated paragraph (k)(3) and
add a semicolon in its place, and add
new paragraphs (k)(2) and (s) to read as
follows:
§122.44 Establishing limitations,
standards, and other permit conditions
(applicable to State NPDES programs, see
§123.25).
*****
(k) * * *
(2) Authorized under section 402(p) of
CWA for the control of storm water
discharges;
*****
(s) Qualifying State, Tribal, or local
programs. (1) For storm water
discharges associated with small
construction activity identified in
§ 122.26(b)(15), the Director may
include permit conditions that
incorporate qualifying State, Tribal, or
local erosion and sediment control
program requirements by reference.
Where a qualifying State, Tribal, or local
program does not include one or more
of the elements in this paragraph (s)(l),
then the Director must include those
elements as conditions in the permit. A
qualifying State, Tribal, or local erosion
and sediment control program is one
that includes:
(i) Requirements for construction site
operators to implement appropriate
erosion and sediment control best
management practices;
(ii) Requirements for construction site
operators to control waste such as
discarded building materials, concrete
truck washout, chemicals, litter, and
sanitary waste at the construction site
that may cause adverse impacts to water
quality;
(iii) Requirements for construction
site operators to develop and implement
a storm water pollution prevention plan.
(A storm water pollution prevention
plan includes site descriptions,
descriptions of appropriate control
measures, copies of approved State,
Tribal or local requirements,
maintenance procedures, inspection
procedures, and identification of non-
storm water discharges); and
(iv) Requirements to submit a site
plan for review that incorporates
consideration of potential water quality
impacts.
(2) For storm water discharges from
construction activity identified in
§ 122.26(b)(14)(x), the Director may
include permit conditions that
incorporate qualifying State, Tribal, or
local erosion and sediment control
program requirements by reference. A
qualifying State, Tribal or local erosion
and sediment control program is one
that includes the elements listed in
paragraph (s)(l) of this section and any
additional requirements necessary to
achieve the applicable technology-based
standards of "best available technology"
and "best conventional technology"
based on the best professional judgment
of the permit writer.
7. Add § 122.62(a)(14) to read as
follows:
§ 122.62 Modification or revocation and
reissuance of permits (applicable to State
programs, see § 123.25).
*****
(a) * * *
(14) For a small MS4, to include an
effluent limitation requiring
implementation of a minimum control
measure or measures as specified in
§122.34(b) when:
(i) The permit does not include such
measure(s) based upon the
determination that another entity was
responsible for implementation of the
requirement(s); and
(ii) The other entity fails to implemenj
measure(s) that satisfy the
requirement(s).
* * * * *
8. Revise Appendices F, G, H, and I
to Partl22 to read as follows:
APPENDIX F TO PART 122.—INCOR]
PORATED PLACES WITH PopuJ
LATIONS GREATER THAN 250.00C
ACCORDING TO THE 1990 DECEN!
NIAL CENSUS BY THE BUREAU Olf
THE CENSUS
State
Alabama
Arizona ..
California
Colorado
District of Columbia
Florida
Georgia
Illinois
Indiana
Kansas
Kentucky
Louisiana
Maryland
Massachusetts
Michigan
Minnesota
Missouri
Nebraska
New Jersey ,
New Mexico
New York ....
North Carolina
Ohio ,...
Oklahoma
Oregon ...
Pennsylvania
Tennessee
Texas
Incorporated Place
Birmingham.
Phoenix.
Tucson.
Long Beach.
Los Angeles.
Oakland.
Sacramento.
San Diego.
San Francisco.
San Jose.
Denver.
Jacksonville.
Miami.
Tampa.
Atlanta.
Chicago.
Indianapolis.
Wichita.
Louisville.
New Orleans.
Baltimore.
Boston.
Detroit.
Minneapolis.
St. Paul.
Kansas City.
St. Louis.
Omaha.
Newark.
Albuquerque.
Buffalo.
Bronx Borough.
Brooklyn Borough.
Manhattan Borough.
Queens Borough.
Staten Island Bor-
ough.
Charlotte.
Cincinnati.
Cleveland.
Columbus.
Toledo.
Oklahoma City.
Tulsa.
Portland.
Philadelphia.
Pittsburgh.
Memphis.
Nashville/Davidson.
Austin.
Dallas.
El Paso.
Fort Worth.
Houston.
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6884:8 Federal Register / Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
APPENDIX P TO PART 122.—INCOR-
PORATED PLACES WITH POPU-
LATIONS GREATER THAN 250,000
ACCORDING TO THE 1990 DECEN-
NIAL CENSUS BY THE BUREAU OF
THE CENSUS—Continued
State
Virginia
Washington
Wisconsin ...
Incorporated Place
San Antonio.
Norfolk.
Virginia Beach.
Seattle.
Milwaukee.
APPENDIX G TO PART 122.—INCOR-
PORATED PLACES WITH POPU-
LATIONS GREATER THAN 100,000
BUT LESS THAN 250,000 ACCORD-
ING TO THE 1990 DECENNIAL CEN-
SUS BY THE BUREAU OF THE CEN-
SUS
State
Alabama
Alaska
Arizona
Arkansas
California
Colorado
Incorporated place
Huntsville.
Mobile.
Montgomery.
Anchorage.
Mesa.
Tempe.
Little Rock.
Anaheim.
Bakersfield.
Berkeley.
Chula Vista.
Concord.
El Monte.
Escondido.
Fremont.
Fresno.
Fullerton.
Garden Grove.
Glendale.
Hay ward.
Huntington Beach.
Inglewood.
Irvine.
Modesto.
Moreno Valley.
Oceanside.
Ontario.
Orange.
Aurora.
APPENDIX G TO PART 122.—INCOR-
PORATED PLACES WITH POPU-
LATIONS GREATER THAN 100,000
BUT LESS THAN 250,000 ACCORD-
ING TO THE 1990 DECENNIAL CEN-
SUS BY THE BUREAU OF THE CEN-
SUS—Continued
APPENDIX G TO PART 122.—INCOR-
PORATED PLACES WITH POPU-
LATIONS GREATER THAN 100,000
BUT LESS THAN 250,000 ACCORD-
ING TO THE 1990 DECENNIAL CEN-
SUS BY THE BUREAU OF THE CEN-
SUS—Continued
State
Connecticut
Florida
Georgia
Idaho .
Illinois
Indiana
Iowa ,
Kansas
Kentucky
Louisiana
Massachusetts
Michigan
Mississippi
Missouri ....
Nebraska
Nevada ...
Incorporated place
State
Colorado Springs.
Lakewood.
Pueblo.
Bridgeport.
Hartford.
New Haven.
Stamford.
Waterbury.
Fort Lauderdale.
Hialeah.
Hollywood.
Orlando.
St. Petersburg.
Tallahassee.
Columbus.
Macon.
Savannah.
Boise City.
Peoria.
Rockford.
Evansville.
Fort Wayne.
Gary.
South Bend.
Cedar Rapids.
Davenport.
Des Moines.
Kansas City.
Topeka.
Lexington-Fayette.
Baton Rouge.
Shreveport.
Springfield.
Worcester.
Ann Arbor.
Flint.
Grand Rapids.
Lansing.
Livonia.
Sterling Heights.
Warren.
Jackson.
Independence.
Springfield.
Lincoln.
Las Vegas.
Reno.
New Jersey
New York ...
North Carolina
Ohio
Oregon
Pennsylvania
Rhode Island ...
South Carolina
Tennessee
Texas
Utah
Virginia
Washington
Wisconsin ...
Incorporated place
Elizabeth.
Jersey City.
Paterson.
Albany.
Rochester.
Syracuse.
Yonkers.
Durham.
Greensboro.
Raleigh.
Winston-Salem.
Akron.
Dayton.
Youngstown.
Eugene.
Allentown.
Erie.
Providence.
Columbia.
Chattanooga.
Knoxville.
Abilene.
Amarillo.
Arlington.
Beaumont.
Corpus Christi.
Garland.
Irving.
Laredo.
Lubbock.
Mesquite.
Pasadena.
Piano.
Waco.
Salt Lake City.
Alexandria.
Chesapeake.
Hampton.
Newport News.
Portsmouth.
Richmond.
Roanoke.
Spokane.
Tacoma.
Madison.
APPENDIX H TO PART 122.—COUNTIES WITH UNINCORPORATED URBANIZED AREAS WITH A POPULATION OF 250,000 OR
MORE ACCORDING TO THE 1990 DECENNIAL CENSUS BY THE BUREAU OF THE CENSUS
State
California
Delaware
Florida
Georgia
Hawaii
Maryland
County
Los Angeles
Sacramento
San Diego
New Castle
Dade
DeKalb
Honolulu1
Anne Arundel
Baltimore
Montgomery
Unincorporated ur-
banized popu-
lation
886 780
594 889
250 414
1 014 "ifM
44Q fiQfi
m*!flR
'1AA RZA
627 593
599.028
-------
Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68849
APPENDIX H TO PART 122.—COUNTIES WITH UNINCORPORATED URBANIZED AREAS WITH A POPULATION OF 250,000 OR
MORE ACCORDING TO THE 1990 DECENNIAL CENSUS BY THE BUREAU OF THE CENSUS—Continued
State
Texas
Utah
Virginia
Washington '.
County
Prince George's . .
Harris
Salt Lake
Fairfax
King
Unincorporated ur-
banized popu-
lation
494 369
729 206
270 989
760 730
520.468
1 County was previously listed in this appendix; however, population dropped to below 250,000 in the 1990 Census.
APPENDIX I TO PART 122.—COUNTIES WITH UNINCORPORATED URBANIZED AREAS GREATER THAN 100,000 BUT LESS
THAN 250,000 ACCORDING TO THE 1990 DECENNIAL CENSUS BY THE BUREAU OF THE CENSUS
State
Alabama
Arizona
California
Colorado
Florida .. . .
Georgia
Kentucky
Louisiana
Maryland
North Carolina
Nevada
Oregon
South Carolina
Virginia
Washington
County
Jefferson
Pirna
Alameda
Contra Costa
Kern
Orange
Riverside
San Bernardino
Arapahoe
Broward
Escambia
Hillsborough
Lee
Manatee
Orange
Palm Beach
Pasco
Pinellas
Polk
Sarasota
Seminole
Clayton
Cobb
Fulton
Gwinnett
Richmond
Jefferson
East Baton Rouge
Parish
Jefferson Parish
Howard
Cumberland
Clark
Multnomah 1 .
Washington
Greenville
Richland
Arlington
Chesterfield
Henrico
Prince William ;
Pierce
Snohomish
Unincorporated ur-
banized popu-
lation
78 608
1 62 202
115 082
131 082
1 28 503
223 081
166 509
1 62 202
1 n*^ P4R
149 qoq
1 67 463
398 593
102 337
123 828
378 61 1
360 553
148 907
255 772
121 528
172600
127 873
1 33 237
322 595
127776
237 305
126476
poq Aon
1 02 539
331 307
1 57 972
146 827
327 618
52 923
116 687
1 47 464
130 589
170 936
174 488
201 367
157 131
258 530
157,218
1 County was previously listed in this appendix; however, population dropped to below 100,000 in the 1990 Census
PART 123—STATE PROGRAM
REQUIREMENTS
1. The authority citation for part 123
continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C.
1251 et seq.
2. Amend § 123.25 by removing the
word "and" at the end of paragraph
(a] (3 7), by removing the period at the
end of paragraph (a)(38) and adding a
semicolon in its place, and by adding
paragraphs (a)(39) through (a)(45) to
read as follows:
§ 123.25 Requirements for permitting.
(a)* * *
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6885Q Federal Register / Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations
(39) § 122.30 (What are the objectives
of the storm water regulations for small
MS4s?);
(40) § 122.31 (For Indian Tribes only)'
(As a Tribe, what is my role under the
NPDES storm water program?);
(41) § 122.32 (As an operator of a
small MS4, am I regulated under the
NPDES storm water program?);
(42) § 122.33 (If I am an operator of a
regulated small MS4, how do I apply for
an NPDES permit? When do I have to
apply?);
(43) § 122.34 (As an operator of a
regulated small MS4, what will my
NPDES MS4 storm water permit
require?);
(44) § 122.35 (As an operator of a
regulated small MS4, may I share the
responsibility to implement the
minimum control measures with other
entities?); and
(45) § 122.36 (As an operator of a
regulated small MS4, what happens if I
don't comply with the application or
permit requirements in §§ 122.33
through 122.35?).
*****
3. Add § 123.35 to subpart B to read
as follows:
§ 123.35 As the NPDES Permitting
Authority for regulated small MS4s, what is
my role?
(a) You must comply with the
requirements for all NPDES permitting
authorities under Parts 122, 123, 124,
and 125 of this chapter. (This section is
meant only to supplement those
requirements and discuss specific issues
related to the small MS4 storm water
program.)
(b) You must develop a process, as
well as criteria, to designate small MS4s
other than those described in
§ 122.32(a)(l) of this chapter, as
regulated small MS4s to be covered
under the NPDES storm water'discharge
control program. This process must
include the authority to designate a
small MS4 waived under paragraph (d)
of this section if circumstances change.
EPA may make designations under this
section if a State or Tribe fails to comply
with the requirements listed in this
paragraph. In making designations of
small MS4s, you must:
(l)(i) Develop criteria to evaluate
whether a storm water discharge results
in or has the potential to result in
exceedances of water quality standards,
including impairment of designated
uses, or other significant water quality
impacts, including habitat and
biological impacts.
(ii) Guidance: For determining other
significant water quality impacts, EPA
recommends a balanced consideration
of the following designation criteria on
a watershed or other local basis:
discharge to sensitive waters, high
growth or growth potential, high
population density, contiguity to an
urbanized area, significant contributor
of pollutants to waters of the United
States, and ineffective protection of
water quality by other programs;
(2) Apply such criteria, at a minimum,
to any small MS4 located outside of an
urbanized area serving a jurisdiction
with a population density of at least
1,000 people per square mile and a
population of at least 10,000;
(3) Designate any small MS4 that
meets your criteria by December 9,
2002. You may wait until December 8,
2004 to apply the designation criteria on
a watershed basis if you have developed
a comprehensive watershed plan. You
may apply these criteria to make
additional designations at any time, as
appropriate; and
(4) Designate any small MS4 that
contributes substantially to the
pollutant loadings of a physically
interconnected municipal separate
storm sewer that is regulated by the
NPDES storm water program.
(c) You must make a final
determination within 180 days from
receipt of a petition under § 122.26(f) of
this chapter (or analogous State or
Tribal law). If you do not do so within
that time period, EPA may make a
determination on the petition.
(d) You must issue permits consistent
with §§ 122.32 through 122.35 of this
chapter to all regulated small MS4s. You
may waive or phase in the requirements
otherwise applicable to regulated small
MS4s, as defined in § 122.32(a)(l) of this
chapter, under the following
circumstances:
(1) You may waive permit coverage
for each small MS4s in jurisdictions
with a population under 1,000 within
the urbanized area where all of the
following criteria have been met:
(i) Its discharges are not contributing
substantially to the pollutant loadings of
a physically interconnected regulated
MS4 (see paragraph (b)(4) of this
section); and
(ii) If the small MS4 discharges any
pollutant(s) that have been identified as
a cause of impairment of any water body
to which it discharges, storm water
controls are not needed based on
wasteload allocations that are part of an
EPA approved or established "total
maximum daily load" (TMDL) that
address the pollutant(s) of concern.
(2) You may waive permit coverage
for each small MS4 in jurisdictions with
a population under 10,000 where all of
the following criteria have been met:
(i) You have evaluated all waters of
the U.S., including small streams,
tributaries, lakes, and ponds, that
receive a discharge from the MS4
eligible for such a waiver.
(ii) For all such waters, you have
determined that storm water controls
are not needed based on wasteload
allocations that are part of an EPA
approved or established TMDL that
addresses the pollutant(s) of concern or,
if a TMDL has not been developed or
approved, an equivalent analysis that
determines sources and allocations for
the pollutant(s) of concern.
(iii) For the purpose of paragraph
(d)(2)(ii) of this section, the pollutant(s)
of concern include biochemical oxygen
demand (BOD), sediment or a parameter
that addresses sediment (such as total
suspended solids, turbidity or siltation),
pathogens, oil and grease, and any
pollutant that has been identified as a
cause of impairment of any water body
that will receive a discharge from the
MS4.
(iv) You have determined that current
and future discharges from the MS4 do
not have the potential to result in
exceedances of water quality standards,
including impairment of designated
uses, or other significant water quality
impacts, including habitat and
biological impacts.
(v) Guidance: To help determine other
significant water quality impacts, EPA
recommends a balanced consideration
of the following criteria on a watershed
or other local basis: discharge to
sensitive waters, high growth or growth
potential, high population or
commercial density, significant
contributor of pollutants to waters of the
United States, and ineffective protection
of water quality by other programs.
(3) You may phase in permit coverage
for small MS4s serving jurisdictions
with a population under 10,000 on a
schedule consistent with a State
watershed permitting approach. Under
this approach, you must develop and
implement a schedule to phase in
permit coverage for approximately 20
percent annually of all small MS4s that
qualify for such phased-in coverage.
Under this option, all regulated small
MS4s are required to have coverage
under an NPDES permit by no later than
March 8, 2007. Your schedule for
phasing in permit coverage for small
MS4s must be approved by the Regional
Administrator no later than December
10, 2001.
(4) If you choose to phase in permit
coverage for small MS4s in jurisdictions
with a population under 10,000, in
accordance with paragraph (d)(3) of this
section, you may also provide waivers
in accordance with paragraphs (d)(l)
and (d)(2) of this section pursuant to
your approved schedule.
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Federal Register/Vol. 64, No. 235/Wednesday, December 8, 1999/Rules and Regulations 68851
(5) If you do not have an approved
schedule for phasing in permit coverage,
you must make a determination whether
to issue an NPDES permit or allow a
waiver in accordance with paragraph
(d)(1) or (d)(2) of this section, for each
eligible MS4 by December 9, 2002.
(6) You must periodically review any
waivers granted in accordance with
paragraph (d)(2) of this section to
determine whether any of the
information required for granting the
waiver has changed. At a minimum, you
must conduct such a review once every
five years. In addition, you must
consider any petition to review any
waiver when the petitioner provides
evidence that the information required
for granting the waiver has substantially
changed.
(e) You must specify a time period of
up to 5 years from the date of permit
issuance for operators of regulated small
MS4s to fully develop and implement
their storm water program.
(f) You must include the requirements
in §§122.33 through 122.35 of this
chapter in any permit issued for
regulated small MS4s or develop permit
limits based on a permit application
submitted by a regulated small MS4.
(You may include conditions in a
regulated small MS4 NPDES permit that
direct the MS4 to follow an existing
qualifying local program's requirements,
as a way of complying with some or all
of the requirements in § 122.34(b) of this
chapter. See § 122.34(c) of this chapter.
Qualifying local, State or Tribal program
requirements must impose, at a
minimum, the relevant requirements of
§ 122.34(b) of this chapter.)
(g) If you issue a general permit to
authorize storm water discharges from
small MS4s, you must make available a
menu of BMPs to assist regulated small
MS4s in the design and implementation
of municipal storm water management
programs to implement the minimum
measures specified in §122.34(b) of this
chapter. EPA plans to develop a menu
of BMPs that will apply in each State or
Tribe that has not developed its own
menu. Regardless of whether a menu of
BMPs has been developed by EPA, EPA
encourages State and Tribal permitting
authorities to develop a menu of BMPs
that is appropriate for local conditions.
EPA also intends to provide guidance
on developing BMPs and measurable
goals and modify, update, and
supplement such guidance based on the
assessments of the NPDES MS4 storm
water program and research to be
conducted over the next thirteen years.
(h)(l) You must incorporate any
additional measures necessary to ensure
effective implementation of your State
or Tribal storm water program for
regulated small MS4s.
(2) Guidance: EPA recommends
consideration of the following:
(i) You are encouraged to use a
general permit for regulated small MS4s;
(ii) To the extent that your State or
Tribe administers a dedicated funding
source, you should play an active role
in providing financial assistance to
operators of regulated small MS4s;
(iii) You should support local
programs by providing technical and
programmatic assistance, conducting
research projects, performing watershed
monitoring, and providing adequate
legal authority at the local level;
(iv) You are encouraged to coordinate
and utilize the data collected under
several programs including water
quality management programs, TMDL
programs, and water quality monitoring
programs;
(v) Where appropriate, you may
recognize existing responsibilities
among governmental entities for the
control measures in an NPDES small
MS4 permit (see § 122.35(b) of this
chapter); and
(vi) You are encouraged to provide a
brief (e.g., two page) reporting format to |
facilitate compiling and analyzing data
from submitted reports under
§ 122.34(g)(3) of this chapter. EPA
intends to develop a model form for this
purpose.
PART 124—PROCEDURES FOR
DECISIONMAKING
1. The authority citation for part 124
continues to read as follows:
Authority: Resource Conservation and
Recovery Act, 42 U.S.C. 6901 et seq.; Safe
Drinking Water Act, 42 U.S.C. 300(f) et seq.;
Clean Water Act, 33 U.S.C. 1251 ef seq.;
Clean Air Act, 42 U.S.C. 7401 et seq.
2. Revise § 124.52(c) to read as
follows:
§ 124.52 Permits required on a case-by-
case basis.
*****
(c) Prior to a case-by-case
determination that an individual permit |
is required for a storm water discharge
under this section (see § 122.26(a)(l)(v),
(c)(l)(v), and (a)(9)(iii) of this chapter),
the Regional Administrator may require
the discharger to submit a permit
application or other information
regarding the discharge under section
308 of the CWA. In requiring such
information, the Regional Administrator |
shall notify the discharger in writing
and shall send an application form with
the notice. The discharger must apply
for a permit within 180 days of notice,
unless permission for a later date is
granted by the Regional Administrator.
The question whether the initial
designation was proper will remain
open for consideration during the public)
comment period under § 124.11 or
§ 124.118 and in any subsequent
hearing.
[FR Doc. 99-29181 Filed 12-7-99; 8:45 am]
BILLING CODE 6560-50-P
-------
Federal Register / Vol. 64, No. 235/Wednesday, December 8, 1999/Notices
ENVIRONMENTAL PROTECTION
AGENCY
[FRL-6472-8]
Report to Congress on the Phase II
Storm Water Regulations
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Notice of availability of Report
to Congress.
SUMMARY: EPA submitted a Report to
Congress prior to promulgation of the
new Phase II storm water regulations.
The Report was required in the
Agency's appropriation legislation for
fiscal year 2000. The appropriation
legislation also requires that USEPA
invite public comment on the Report.
By this notice, USEPA invites public
comment.
DATES: Written comments on this notice
and the Report to Congress must be
submitted on or before January 7, 2000.
ADDRESSES: The Report to Congress on
the Phase II Storm Water Regulations is
available through the Internet on the
EPA Office of Wastewater Management
web site at http://www.epa.gov/owm/
sw/phase2. Hard copies may be
obtained by contacting the U.S. EPA
Water Resource Center, 401 M Street,
S.W., Washington, D.C. 20460;
telephone: (202) 260-7786 (24-hour
voice mail), fax: (202) 260-0386, e-mail:
center.resource@epa.gov. Comments
should be mailed to George Utting,
USEPA, Office of Wastewater
Management, Mail Code 4203, 401 M
Street, S.W., Washington, D.C. 20460.
Comments also may be faxed to (202)
260-1460 or submitted via the Internet
to sw2@epamail.epa.gov.
FOR FURTHER INFORMATION CONTACT:
George Utting, Office of Wastewater
Management, Mail Code 4203, 401 M
Street, S.W., Washington, D.C. 20460;
telephone (202) 260-9530; email:
sw2@epamail.epa.gov.
SUPPLEMENTARY INFORMATION: On
October 29, 1999, the Administrator of
EPA signed a regulation that
implements Section 402(p)(6) of the
Clean Water Act. This rulemaking is
referred to as the final Phase II storm
water rule and is also published in
today's Federal Register.
The Phase II storm water rule expands
the existing National Pollutant
Discharge Elimination System (NPDES)
permitting program to address storm
water runoff from construction sites
between one and five acres and
municipal separate storm sewer systems
in urbanized areas serving populations
of less than 100,000. The Phase II rule
builds on the existing Phase I program,
which controls storm water runoff from
municipalities with populations greater
than 100.000 and 11 industrial
categories, including construction
disturbing over five acres.
Statutory Authority
The Report to Congress on the Phase
II Storm Water Regulations was required
bv section 431(a) of the Departments of
Veterans Affairs and Housing and Urban
Development and Independent Agencies
Appropriations Act of 2000, Public Law
l()f.-74 (1999) (Appropriations Act).
Section 431 (a) of the Appropriations Act
directed EPA to submit a report that
addresses the following issues with
respect to the Phase II Storm Water
Rule: (1) An analysis of the impact of
the rule on local governments, (2) an
explanation of the rationale for lowering
the threshold for regulation of
construction sites from 5 acres to 1 acre,
(3) an explanation of why the coverage
of the regulation is based on a census-
determined population instead of a
water quality threshold and
documentation that storm water runoff
is generally a problem in communities
with populations of 50,000 to 100,000,
and (4) information that supports the
position of the Administrator that the
Phase II storm water program should be
administered as part of the NPDES
permit program.
On October 28, 1999, EPA delivered
to the Committee on Environment and
Public Works in the Senate and the
Committee on Transportation and
Infrastructure in the House of
Representatives a report that satisfied
the mandate of section 431{a). Section
431(c) of the Appropriations Act directs
EPA to publish the report in the Federal
Register for public comment. By today's
notice, EPA invites public comment by
January 7, 2000. EPA will carefully
review and evaluate comments received
and determine whether the comments
warrant further action.
Dated: November 4, 1999.
J. Charles Fox,
Assistant Administrator, Office of Water.
[FR Doc. 99-29301 Filed 12-7-99: 8:45 am]
BILLING CODE 6560-SO-P
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