Monday
August 7, 1995
Part II
Environmental
Protection Agency
40 CFR Parts 122 and 124
Storm Water Discharges; Amendment to
Requirements for National Pollutant
Discharge Elimination System Permits;
Final Rule
-111
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40230 Federal Register / Vol. 60, No. 151 / Monday, August 7, 1995 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 122 and 124
[FRL-5271-7]
Amendment to Requirements for
National Pollutant Discharge
Elimination System (NPDES) Permits
for Storm Water Discharges Under
Section 402(p)(6) of the Clean Water
Act
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule; withdrawal of direct
final rule.
SUMMARY: Today, EPA is withdrawing
the storm water phase II direct final rule
published on April 7, 1995 (60 FR
17950) and promulgating a final rule in
its place based on an identical proposal
published that same day (60 FR 17958).
By today's action, EPA is promulgating
changes to the National Pollutant
Discharge Elimination System (NPDES)
storm water permit application
regulations under the Clean Water Act
(CWA) for phase II dischargers. Phase II
dischargers generally include all point
source discharges of storm water from
commercial, retail and institutional
facilities and from municipal separate
storm sewer systems serving
populations oflessthan 100,000.
Today's rule establishes a sequential
application process in two tiers for all
phase II storm water discharges. The
first tier provides the NPDES permitting
authority flexibility to require permits
for those phase II dischargers that are
determined to be contributing to a water
quality impairment or are a significant
contributor of pollutants to waters of the
United States. ("Permitting authority"
refers to EPA or States and Indian Tribes
with approved NPDES programs.) EPA
expects this group to be small because
most of these types of dischargers have
already been included under phase I of
the storm water program. The second
tier includes all other phase II
dischargers. This larger group will be
required to apply for permits by the end
of six years, but only if the phase II
regulatory program in place at that time
requires permits. As discussed in more
detail below, EPA is open to, and
committed to, exploring a number of
non-permit control strategies for the
phase II program that will allow
efficient and effective targeting of real
environmental problems. As part of this
commitment, EPA has initiated a
process to include stakeholders in the
development of a supplemental phase II
rule under the Federal Advisory
Committee Act (FACA). This rule will
be finalized by March 1,1999 and will
determine the nature and extent of
requirements, if any, that will apply to
the various types of phase II facilities
prior to the end of the six-year
application period defined by today's
rule.
DATES: The direct final rule published
on April 7, 1995 at 60 FR 17950 and
corrected on April 18,1995 at 60 FR
19464 is withdrawn and this final rule
is effective on August 7,1995. In
accordance with 40 CFR 23.2, EPA is
explicitly providing that this rule shall
be considered final for purposes of
judicial review at 1 p.m. (Eastern time)
on August 7, 1995.
ADDRESSES; The docket for this
rulemaking is available for public
inspection at EPA's Water Docket, Room
L-102, 401 M Street, SW, Washington,
DC 20460. For access to the docket
materials, call (202) 260-3027 between
9 a.m. and 3:30 p.m. (Eastern time) for
an appointment. Please indicate that the
docket to be accessed is for the April 7,
1995 Federal Register notice on the
storm water phase II regulations. As
provided in 40 CFR part 2, a reasonable
fee may be charged for copying services.
FOR FURTHER INFORMATION CONTACT:
Nancy Cunningham, Office of
Wastewater Management, Permits
Division (4203), Environmental
Protection Agency, 401 M Street, SW,
Washington, DC 20460, (202) 260-9535.
SUPPLEMENTARY INFORMATION:
I. Overview of Today's Action
Today, EPA is promulgating the phase
II storm water application regulations as
proposed on April 7,1995 (60 FR
17958). EPA also is withdrawing the
direct final rule published on that same
date (60 FR 17950); corrected at 60 FR
19464, April 18,1995. The direct final
and proposed rules contained identical
requirements. By today's rule, EPA
promulgates changes to the NPDES
storm water permit application
regulations under the CWA to establish
a common sense approach for all phase
II storm water dischargers. Phase II
storm water dischargers include those
storm water discharges not addressed
under phase I of the storm water
program.1. Generally, phase II
dischargers are point source discharges
of storm water from commercial, retail,
'Phase I dischargers include; dischargers issued
a permit before February 4,1987; discharges
associated with industrial activity; discharges from
a municipal separate storm sewer system serving a
population of 100,000 or more; and discharges that
the 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.
light industrial and institutional
facilities, construction activities under
five acres, and from municipal separate
storm sewer systems serving
populations of less than 100,000.
Today's rulemaking will promote the
public interest by relieving most phase
II dischargers of the immediate
requirement to apply for permits.
Consequently, this rule relieves most
phase II dischargers from citizen suit
liability for failure to have an NPDES
permit over the next six years. If a phase
II discharger complies with the
application deadlines established by
today's rule, the facility will not be
subject to enforcement action for
discharge without a permit or for failure
to submit a permit application.
Under today's rule, application
deadlines are in two tiers. The first tier
allows the permitting authority to focus
current efforts on those facilities that
will produce the greatest environmental
benefit. The first tier is for those phase
II dischargers that the NPDES permitting
authority determines are contributing to
a water quality impairment or are a
significant contributor of pollutants to
waters of the U.S. Those dischargers
that have been so designated are
required to obtain a permit and must
submit permit applications to the
permitting authority within 180 days of
being notified that such an application
is required. The permitting authority
has the flexibility to extend this
deadline. Under the second tier, all
remaining phase II facilities must apply
for permits by August 7, 2001, but only
if the phase II regulatory program in
place at that time requires permits. EPA
is actively exploring alternative control
strategies with broad stakeholder
involvement. EPA is also establishing
application requirements for phase II
dischargers, as well as making other
conforming changes to other portions of
the NPDES regulations in today's rule.
EPA is subject to a court order to
propose supplemental rules for phase II
sources by September 1,1997, and
finalize them by March 1,1999. Natural
Resources Defense Council, Inc. v.
Browner, Civ. No. 95-634 PLF (D.D.C.,
April 6,1995). However, if the CWA is
amended prior to these dates to address
some of these storm water issues, EPA
will, of course, move to expeditiously
implement the statutory changes.
II. Background
EPA provided an extensive discussion
of the statutory and regulatory
background of the storm water program
in the direct final rule published in the
April 7,1995, Federal Register notice
(60 FR 17950). For the sake of brevity,
EPA refers the reader to that notice and
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40231
only briefly repeats the background
necessary to explain the need for today's
final rule.
As explained in CWA section 101,
Congress enacted the CWA "to restore
and maintain the chemical, physical,
and biological integrity of the Nation's
waters" through reduction and eventual
elimination of the discharge of
pollutants into those waters. CWA
section 301 prohibits the discharge of
pollutants from a point source except in
compliance with certain other sections
of the Act. One of those sections, section
402, established the National Pollutant
Discharge Elimination System (NPDES),
the permitting program for control of
point source discharges including storm
water.
In the 1987 amendments to the CWA,
Congress enacted section 402(p).
Section 402(p)(l) relieved certain storm
water dischargers (commonly referred to
as phase II dischargers) from the
requirement to obtain a permit until
October 1,1992. Section 402(p)(6)
provided that EPA was to publish
regulations by October 1,1992. Congress
later extended the date for the
permitting moratorium until October 1,
1994, and the date for publication of
phase II regulations until October 1,
1993. See Water Resources Development
Act of 1992, Public Law No. 102-580,
section 364,108 Stat. 4797, 4862 (1992),
Though the relief from the permit
requirement lapsed on October 1,1994,
EPA had not published phase II storm
water regulations. On October 18,1994,
EPA issued guidance explaining that
regulations had not yet been
promulgated for the phase II storm
water program, and that the Agency was
unable to waive the statutory
prohibition against unpermitted
discharges of pollutants to waters of the
United States in the absence of such
regulations. EPA is not attempting to
extend the CWA deadlines in today's
rule, but rather is establishing the phase
II storm water program under section
402(p)(6). (See Response to Comment
section below for further discussion of
this issue.)
III. Regulation Changes
In today's rule, EPA is designating
under section 402(p)(6) all phase II
sources as being part of the phase II
program. EPA is establishing permit
application deadlines for these
dischargers in two tiers in today's rule.
To obtain real environmental results
early, the first tier applies to those phase
II dischargers that the NPDES permitting
authority determines are contributing to
a water quality impairment or are a
significant contributor of pollutants.
Those dischargers that have been so
designated by the permitting authority
are required to obtain a permit and must
submit a permit application within 180
days of being notified that such an
application is required. The permitting
authority has the flexibility to extend
this deadline. Under the second tier, all
other phase II facilities must apply for
permits by August 7, 2001, but only if
the phase II regulatory program in place
at that time requires permits.
EPA also is establishing application
requirements for phase II dischargers, as
well as making other conforming
changes to other portions of its NPDES
regulations in today's rule. For example,
EPA is providing flexibility to the
permitting authority to modify the
specific application requirements for
phase II dischargers. Again EPA believes
this is a common sense approach to
alleviate unnecessary burden on phase
II dischargers. The specifics of the
application requirements and other
conforming changes are explained in the
April 7,1995, notice published at 60 FR
17950. EPA has not changed the
regulatory text in today's final rule from
that notice.
IV. Responses to Public Comment
A comprehensive "response to
comment" document is available in the
administrative record for this
rulemaking. Many significant
comments, and EPA's responses, are
summarized below.
Many commenters disagreed with
EPA's interpretation of section 402(p) of
the CWA in which EPA determined that
section 402(p) sets a statutory deadline
for the issuance of permits to phase II
storm water dischargers. The
commenters argued that 402(p) does not
require permits for all discharges of
storm water after October 1, 1994, rather
it prohibits the need for such permits
before this date.
EPA disagrees. CWA section 301(a)
states that it is illegal to discharge
pollutants to waters of the U.S. except
in compliance with Section 402. The
current regulations under section 402
establish a permit program for point
source discharges. In the 1987
amendments to the CWA, Congress
added Section 402(p) to ensure the
orderly evolution of the NPDES storm
water program. Section 402(p)(l) did
not alter the basic underlying
prohibition in Section 301(a) as it
applied to storm water discharges.
Section 402(p)(l) did, however,
establish temporary relief from
permitting requirements for certain
storm water discharges for a specified
period of time. Section 402(p)(6)
provided EPA with the authority to
consider alternative control strategies
for the phase II program. Because EPA
had not established alternatives under
section 402(p)(6), the existing
permitting requirements under section
402 applied to phase II dischargers after
October 1, 1994.
The legislative history behind 402(p)
supports EPA's position that when the
date lapsed, phase II sources became
subject to the pre-existing statutory
requirement to obtain a NPDES permit.
The Congressional Record from October
15,1986 includes the following
statements from the House of
Representatives:
The relief afforded by this provision
extends only to October 1,1992. After that
date, all municipal separate storm sewers are
subject to the requirements of 301 and 402.
After October 1,1992, the permit
requirements of the Clean Water Act are
restored for municipal separate storm sewer
svstems serving a population of fewer than
100,000.
132 Cong. Rec. H10532 (Oct. 15, 1986)
More recent Congressional actions
provide even clearer support for EPA's
interpretation of Section 402(p). The
original deadline for permits for phase
II storm water discharges was October 1,
1992. At the time of this original
deadline, the Agency was not ready to
issue regulations for implementation of
the phase II program. When Congress
recognized the severe liability problem
this would create for phase II
discharges, Congress decided to extend
the relief deadline in section 402(p)(l)
to October 1,1994. At the same time,
Congress extended the deadline for
phase II regulations in section 402(p)(6)
to October 1,1993, to allow EPA more
time to develop phase II regulations. If
phase II dischargers were not subject to
enforcement for violations of section
301(a) until EPA promulgated the phase
II regulations, Congress would not have
extended sections 402(p)(l) and
402(p)(6) with differing deadlines. If
Congress had not intended unregulated
phase II sources to be liable for
violations of section 301 (a) on October
1,1992, there would have been no need
to amend section 402(p)(l) at all.
In related comments, concern was
expressed that if such statutory
deadlines are valid, EPA does not have
the authority to extend statutory permit
deadlines. In response, EPA disagrees
that this regulation extends statutory
deadlines. The statutory deadline lapsed
on October 1,1994. EPA recognized that
fact, as well as the consequences
thereof, when it issued the October 18,
1994, guidance. The Agency's authority
to act under these circumstances arises
from the clear text of section 402(p)(6).
That section directs EPA to issue
regulations which (l) designate storm
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40232 Federal Register / Vol. 60, No. 151 / Monday, August 7, 1995 / Rules and Regulations
water discharges to be regulated to
protect water quality and (2) establish a
comprehensive program to regulate
those sources, including, among other
things, expeditious deadlines. In today's
rule, EPA relies on section 402(p)(6) to
designate all phase II discharges for
regulation under a comprehensive
program which, for most of those
dischargers, does not require permits for
6 years. During the six-year period, EPA
will investigate alternative control
strategies for the phase II program and
will develop supplemental regulations
through the FACA process.
Commenters also raised concern
regarding the potential for citizen suits.
As explained above, today's final rule
effectively protects most phase II
dischargers from citizen suit liability for
failure to have an NPDES permit for up
to six years.
A few commenters criticized EPA for
the delay in publishing a Report to
Congress on storm water discharges not
covered under phase I. Further, they did
not believe that President Clinton's
Clean Water Initiative adequately
addressed procedures and methods to
control storm water discharges to the
extent necessary to mitigate impacts on
water quality. The Agency believes that
the Storm Water Report to Congress,
which incorporates the President's
Initiative, fulfills the requirements of
section 402(p)(5). The Report to
Congress cites to data confirming the
continuing threat to surface waters
caused, in significant part, by
unregulated storm water discharges. The
Administration's Clean Water Initiative
proposed a variety of procedures and
methods through which permitting
authorities could most flexibly address
remaining unregulated discharges of
storm water to the extent necessary to
mitigate impacts on water quality.
Several commenters questioned
whether State and local officials had
been consulted in developing the
proposed rule as directed by CWA
section 402(p)(6). In a September 9,
1992, Federal Register notice, EPA
invited public comment on reasonable,
alternative approaches for the phase II
storm water program. Prior to
publication of the direct final and
proposed rules on April 7, 1995, EPA
met with representatives of key
municipal organizations to discuss the
content of the rule and to gather
feedback and input. EPA will continue
its outreach efforts by seeking additional
public input through FACA
subcommittee participation, and other
means, in developing supplemental
regulations for the phase II program.
Commenters expressed their opinion
that the proposed rule should be
considered an unfunded mandate as
described under the Unfunded Mandate
Reform Act of 1995. That is, the
commenters believed that the estimated
cost of the regulation to State, local, or
tribal governments, or to the private
sector, will be $100 million or more in
any one year. EPA disagrees. This
rulemaking actually reduces the
immediate regulatory burden imposed
on phase II facilities. EPA believes that
the cost to phase II dischargers that are
immediately designated under tier 1
will be small due to the extremely few
designations that are anticipated.
Furthermore, EPA has the authority to
modify permit application requirements
to require less information and alleviate
unnecessary burden on all phase II
facilities. Because of these reasons, costs
are expected to be well below $100
million for each of the next six years.
EPA believes that any costs that might
be imposed after the sixth year will still
be below $100 million because of the
application flexibility, but in any event,
those costs will not exceed existing
costs (multiplied by the rate of inflation)
because of the current statutory
requirement that phase II dischargers
apply for permits immediately, absent
promulgation of today's rule.
The costs of a "comprehensive" phase
II program after the sixth year will be
more fully characterized through
additional rulemaking as a result of the
FACA process. Under a judicial consent
order in Natural Resources Defense
Council, Inc. v. EPA, Civ. No. 95-0634
PLF (D.D.C. April 6,1995), EPA is
required to propose by September 1,
1997, and take final action by March 1,
1999, supplemental rules which clarify
the scope of coverage and control
mechanisms for the phase II program.
The cost to potential dischargers of this
action will be identified in the
subsequent rulemaking and cannot be
accurately predicted in today's final
rule. However, EPA does not expect that
regulation to cost over $100 million in
any one year.
Commenters questioned EPA's
justification to designate all phase II
dischargers to protect water quality.
Many commenters argued that
construction sites that disturb less than
5 acres should not be so designated
because they do not present significant
water quality concerns. In response,
EPA relies on the Report to Congress to
conclude that unregulated storm water
discharges remain a significant threat to
the health of surface water quality.
While EPA recognizes that individual
facilities within the total phase II
universe may not represent equal
threats, EPA believes that there is
sufficient information concerning water
quality problems to designate the entire
class of phase II dischargers as an
interim matter pending further study in
the context of the rulemaking described
above. EPA will make more specific
designations in the context of that
rulemaking. In response to comments
about small construction sites, EPA
notes that these commenters did not
present any data to support a conclusion
that small construction presents only
negligible water quality concerns. As
explained in the earlier notice, the
FACA subcommittee will explore the
appropriate scope of the phase II
program.
Today's rule states that permit
applications are required within 180
days from receipt of notice for those
phase II discharges that the NPDES
permitting authority determines are
contributing to a water quality
impairment or are a significant
contributor of pollutants. Commenters
requested and suggested further
clarification on both of these
determinations. EPA purposefully did
not provide explicit definitions of these
phrases in order to provide flexibility to
permitting authorities. Interpretive
flexibility is warranted due to climatic
and geographic differences across the
United States. EPA published guidance
for designations under phase I of the
storm water program. Such guidance is
also applicable for the phase II program
designations and is included in the
record of this rulemaking.
One commenter took issue with the
180-day deadline for permit
applications, particularly for municipal
separate storm sewer systems that are
designated under tier 1, The commenter
felt that such a short period of time
would not be sufficient to prepare and
submit a municipal application. In
response, EPA reminds the commenter
that the Director has the authority to
grant permission to submit the
application at a later date. Some
municipalities may not need more time
because they may be able to simply
reference information already submitted
for an adjacent or nearby large or
medium municipality under phase I.
Additionally, the permitting authority is
able to modify the permit application
requirements and may require much
less information than what was required
for phase I dischargers.
Another commenter asked that the
period during which a permitting
authority may designate a facility be
limited to one year. EPA is not limiting
the time frame for designations because
the permitting authority will need to
account for changing conditions and
new information that becomes available
over time.
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Some commenters stated that the
"direct final rule" is not specifically
provided for in the Administrative
Procedure Act (APA) nor has EPA
demonstrated "good cause" to issue a
"direct final rule" under 5 U.S.C.
section 553. This comment is no longer
relevant because EPA is withdrawing
the direct final rule and instead issuing
a final rule that responds to comments
received.
One commenter disputed the
assertion that urban storm water runoff
is a cause of real water quality use
impairment in the United States. The
commenter also believed that it is
inappropriate to base the
implementation of phase II
requirements on exceedance of water
quality standards associated with urban
storm water runoff. The commenter
believed that water quality criteria were
not developed to regulate many of the
chemical constituents in urban storm
water runoff. EPA disagrees. The fact
that urban runoff is a real cause of water
quality use impairment is very well
supported throughout the literature and
is summarized by EPA in the Water
Quality Inventory: Reports to Congress
prepared on a biannual basis under
section 305(b) of the CWA. EPA believes
that basing the implementation of phase
II requirements on exceedance of water
quality standards is appropriate because
attainment of water quality standards is
one of the explicit goals of the NPDES
program. EPA further disagrees that
water quality criteria have not been
developed for many of the chemical
constituents in urban storm water. To
the contrary, water quality criteria exist
for many such constituents, particularly
heavy metals and oil and grease.
A few commenters argued that
comments received on the rule are
unrepresentative of the groups affected
because small cities and commercial
establishments were unaware of the
direct final and proposed rules. In
response, EPA believes that the 60-day
comment period was sufficient for small
entities to formulate their comments
and/or review those drafted by their
representative associations. Many of the
comments received were from national
organizations representing such small
cities and businesses, including,
National Association of Counties,
National Association of Convenience
Stores, Society of Independent Gasoline
Marketers of America, National
Association of Flood and Stormwater
Management Agencies, American
Petroleum Institute, National
Association of Home Builders, and
American Car Rental Association.
One commenter disagreed that this
rulemaking significantly reduces the
immediate regulatory burden imposed
on phase II facilities because phase II
municipalities would have the same
burden imposed on phase I
municipalities. In response; EPA points
out that today's rule provides the
Director with discretion to modify the
application requirements for phase II
dischargers. EPA expects Directors to
exercise this discretion to reduce the
application burden to both
municipalities and individual facilities.
Several commenters questioned the
types of permits that will be available to
dischargers in 2001. Currently, the
permitting authority has the option of
individual or general permits. However,
EPA does not anticipate that permits
will be necessary for all phase II
dischargers in 2001. The Agency is
committed to promulgate supplemental
rules that further consider the scope of
the phase II program as well as
alternative control mechanisms.
Many commenters made suggestions
for the second tier of the phase II
regulations such as to allow and
encourage phase II municipalities to
join phase I municipalities in the same
watershed, standardize procedures
across the United States, and delegate
construction permitting to local
governments. Such suggestions will be
provided to the FACA subcommittee
and will be taken into consideration
when developing the subsequent phase
II regulations. Commenters also made
suggestions for representation on the
FACA subcommittee. Such suggestions
are being considered in formulating the
subcommittee.
Supporting Documentation
A. Executive Order 12866
Under Executive Order 12866, the
Agency must determine whether the
regulatory action is "significant," and
therefore subject to review by the Office
of Management and Budget (OMB) and
the requirements of the Executive Order.
The Order defines "significant
regulatory action" as one that is likely
to lead to a rule that may:
(1) Have an annual effect on the
economy of $100 million or more, or
adversely and materially affecting 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;
(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.
EPA has determined that this
rulemaking significantly reduces the
current regulatory burden imposed on
phase II facilities. The proposed rule
was submitted to OMB for review. OMB
cleared the proposed rule with minor
changes. Review of this final rule was
waived by OMB under the provisions of
Executive Order 12866.
B. Executive Order 12875
Under Executive Order 12875,
entitled "Enhancing the
Intergovernmental Partnership", issued
by the President on October 26,1993,
the Agency is required to develop an
effective process to allow elected
officials and other representatives of
State and Tribal governments to provide
meaningful and timely input in the
development of regulatory proposals.
EPA fully supports this objective and
has initiated a consultation process with
both States and Tribes which will be
continued through the development of
additional phase II rules. Specifically,
EPA has discussed this action with the
representatives of the States, local
governments, the Agency's American
Indian Environmental Office (AIEO),
and parts of the regulated community.
The reaction of the States is positive.
The States and the Association of State
and Interstate Water Pollution Control
Administrators (ASIWPCA) support the
approach that is being taken under
existing law; the States and ASIWPCA
also support concurrent changes to the
law. ASIWPCA has submitted a letter to
the Agency dated March 3,1995, which
is included in the record for this matter.
EPA has responded to many of
ASIWPCA's comments in this preamble.
The reaction of many municipalities
is that they prefer a statutory change
now to clarify the issue once and for all.
Municipalities' representatives
(National Association of Counties,
National League of Cities, U.S.
Conference of Mayors, and the National
Association of Flood and Stormwater
Management Agencies) have raised
many issues to the Agency and have
submitted a letter dated February 16,
1995, which is contained in the record
for this matter. The municipalities
believe that it is inappropriate for EPA
to act now when Congress may act on
this matter, that the action taken by EPA
is not in conformance with the law, and
that EPA did not consult with local
officials on this matter, EPA has
responded to many of the
municipalities' concerns in this
preamble. EPA did consult with various
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40234 Federal Register / Vol. 60, No. 151 / Monday, August 7, 1995 / Rules and Regulations
representatives of local governments
early in the development of this
regulation as well as more
comprehensively in February 1995.
This rule was also coordinated with
EPA's American Indian Environment
Office (AIEO). The Office of Water will
work through the AIEO to provide for a
Tribal representative to participate in
the FACA process.
EPA believes that it has developed an
effective process to obtain input from
State, Tribal and local governments
before issuing this rule, as well as
receiving comments on the direct final
rule and accompanying proposed
rulemaking, and has met the
consultation requirements for States,
federally recognized Tribes and
localities under the terms of Executive
Order 12875.
C. Paperwork Reduction Act
The Paperwork Reduction Act, 44
U.S.C. 3501 et seq,, is intended to
minimize the reporting and record-
keeping burden on the regulated
community, as well as to minimize the
cost of Federal information collection
and dissemination. In general, the Act
requires that information requests and
record-keeping requirements affecting
ten or more non-Federal respondents be
approved by the Office of Management
and Budget.
EPA's existing information collection
request (ICR) entitled "Application for
NPDES Discharge Permit and Sewage
Sludge Management Permit" (OMB
Number 2040-0086) contains
information that responds to this issue
for all storm water discharges, including
those facilities designated into the
program under this regulation as
causing water quality problems. The
burden of similar water quality
designations, utilized under the phase I
storm water program, were accounted
for in the ICR and remain applicable to
the designations that may be made
under this rule. EPA will review and
revise the estimates contained in this
ICR, as appropriate, in its renewal
process.
D. Regulatory Flexibility Act
Under the Regulatory Flexibility Act
(RFA), 5 U.S.C. 601 et seq., EPA must
prepare a Regulatory Flexibility
Analysis for regulations having a
significant impact on a substantial
number of small entities. The RFA
recognizes three kinds of small entities,
and defines them as follows:
(1) Small governmental
jurisdictions—any government of a
district with a population of less than
50,000,
(2) Small business—any business
which is independently owned and
operated and not dominant in its field,
as defined by the Small Business
Administration regulations under the
Small Business Act.
(3) Small organization—any not-for-
profit enterprise that is independently
owned and operated and not dominant
in its field.
EPA has determined that today's rule
would not have a significant impact on
a substantial number of small entities,
and that a Regulatory Flexibility
Analysis therefore is unnecessary.
Through today's action EPA is
benefiting small entities by (1) adopting
a common sense approach to deal with
the issue of storm water phase II
requirements, (2) providing the ability
for the permitting authority to manage
for results by providing flexibility to
deal with storm water phase II
permitting at this time based on water
quality violations or significant
contribution of pollutants, and (3)
clarifying and reducing applicable
burdens for those facilities currently
subject to phase II requirements. The
rule provides additional time for EPA to
work with all stakeholders, including
small entities, to develop additional
phase II regulations under a FACA
process. The Agency is committed to
issue these supplemental phase II
regulations by March 1,1999; in that
rulemaking EPA will reconsider its
Regulatory Flexibility Act analysis.
E, Unfunded Mandates
Under section 202 of the Unfunded
Mandates Reform Act of 1995
("Unfunded Mandates Act"), signed
into law on March 22, 1995, EPA must
prepare a written statement to
accompany proposed rules where the
estimated costs to State, local, or tribal
governments, or to the private sector,
will be $100 million or more in any one
year. Under section 205, EPA must
select the most cost-effective and least
burdensome alternative that achieves
the objective of such a rule and that is
consistent with statutory requirements.
Section 203 requires EPA to establish a
plan for informing and advising any
small governments that may be
significantly and uniquely affected by
any rule.
EPA estimates that the costs to State,
local, or tribal governments, or the
private sector, from this rule will be less
than $100 million. This rulemaking
significantly reduces the immediate
regulatory burden imposed on phase II
facilities. EPA has determined that an
unfunded mandates statement therefore
is unnecessary.
Although not required to make a
finding under section 206, EPA
concludes that this rule is cost-effective
and a significant reduction in burden for
State and local governments. In a
September 9,1992, Federal Register
notice, EPA invited public
consideration of and comment on
reasonable alternative approaches for
the phase II storm water program.
Today's rule provides for the first step
for many of those alternatives by
providing for an orderly process for
developing supplemental regulations.
By establishing regulatory relief until
development of those alternative
approaches, today's rulemaking itself
provides the most cost-effective and
least burdensome alternative to achieve
the objectives of the rule at this stage,
consistent with statutory requirements.
As discussed previously, EPA
initiated consultation with
representative organizations of small
governments under Executive Order
12875. In doing so, EPA provided notice
to potentially affected small
governments to enable them to provide
meaningful and timely input. EPA plans
to inform, educate, and advise small
governments on compliance with any
requirements that may arise in further
development of the storm water phase II
rules.
F. Procedural Requirements and
Effective Date
Today's rule is effective on August 7,
1995. Section 553 of the APA provides
that the required publication or service
of a substantive rule shall be made not
less than 30 days before its effective
date except, as relevant here, (1) for a
substantive rule which grants or
recognizes an exemption or relieves a
restriction or (2) when the agency finds
and publishes good cause for foregoing
delayed effectiveness. Today's rule
relieves phase II dischargers from the
immediate requirement to obtain a
permit. Additionally, the Agency has
determined that good cause exists for
making this regulation effective
immediately because today's final rule
does not differ from the withdrawn
direct final rule which would have
become effective on August 7,1995.
List of Subjects
40 CFR Part 122
Enviromental protection.
Administrative practice and procedure,
Confidential business information,
Hazardous substances, Reporting and
recordkeeping requirements, Water
pollution control.
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Federal Register / Vol. 60, No. 151 / Monday, August 7, 1995 / Rules and Regulations 40235
40 CFR Part 124
Administrative practice and
procedure, Air pollution control,
Hazardous waste, Indian lands,
Reporting and recordkeeping
requirements, Water pollution control,
Water supply.
Dated: July 31,1995.
Carol M. Browner,
Administrator.
For the reasons set forth in this
preamble, parts 122 and 124 of Title 40
of the Code of Federal Regulations are
amended as follows:
PART 122—[AMENDED]
1. The authority citation for part 122
continues to read as follows:
Authority: Clean Water Act, 33 U.S.C. 1251
et seq.
2. Section 122.21 is amended by
adding a sentence to the end of
paragraph (c)(l) to read as follows;
§122.21 Application for a permit
(applicable to State programs, see 123.25).
*****
(c) Time to apply.
(1) * * * New discharges composed
entirely of storm water, other than those
dischargers identified by § 122.26(a)(l),
shall apply for and obtain a permit
according to the application
requirements in § 122.26(g).
3. Section 122.26(a}(l) is amended as
follows:
a. In paragraph (a)(l) the introductory
text is amended by revising the date
"October 1,1992" to read "October 1,
1994";
b. By adding paragraph (a)(9) as set
forth below;
c. By revising the title of paragraph (e)
as set forth below;
d. In paragraph (e)(l)(ii), by revising
the phrase "permit application
requirements are reserved" to read
"permit application requirements are
contained in paragraph (g) of this
section"; and
e. By adding paragraph (g) as set forth
below.
§ 122.26 Storm water discharges
(applicable to State NPDES programs, see
§123.25).
(a) * * *
(9) On and after October 1,1994,
dischargers composed entirely of storm
water, that are not otherwise already
required by paragraph (a)(l) of this
section to obtain a permit, shall be
required to apply for and obtain a
permit according to the application
requirements in paragraph (g) of this
section. The Director may not require a
permit for discharges of storm water as
provided in paragraph (a)(2) of this
section or agricultural storm water
runoff which is exempted from the
definition of point source at §§ 122.2
and 122.3.
*****
(e) Application deadlines under
paragraph (a)(l). * * *
*****
(g) Application requirements for
discharges composed entirely of storm
water under Clean Water Act section
402(p)(6). Any operator of a point
source required to obtain a permit under
paragraph (a)(9) of this section shall
submit an application in accordance
with the following requirements.
(1) Application deadlines. The
operator shall submit an application in
accordance widi the following
deadlines:
(i) A discharger which the Director
determines to contribute to a violation
of a water quality standard or is a
significant contributor of pollutants to
waters of the United States shall apply
for a permit to the Director within 180
days of receipt of notice, unless
permission for a later date is granted by
the Director (see 40 CFR 124.52(c)); or
(ii) All other dischargers shall apply
to the Director no later than August 7,
2001,
(2) Application requirements. The
operator shall submit an application in
accordance with the following
requirements, unless otherwise
modified by the Director:
(i) Individual application for non-
municipal discharges. The requirements
contained in paragraph (c)(l) of this
section.
(ii) Application requirements for
municipal separate storm sewer
discharges. The requirements contained
in paragraph (d) of this section,
(iii) Notice of intent to be covered by
a general permit issued by the Director.
The requirements contained in 40 CFR
122.28Cb)(2).
PART 124—[AMENDED]
4. The authority citation for part 124
continues to read as follows:
Authority: Resource Conservation and
Recovery Act, 42 U.S.C. 3901 et seq.; Safe
Drinking Water Act, 42 U.S.C. 300(f) et seq.;
Clean Water Act, 33 U.S.C. 1251 etseq.;
Clean Air Act, 42 U.S.C. 7401 et seq.
5, Section 124,52(c) is amended by
revising the parenthetical statement and
the next to the last sentence to read as
follows:
§124.52 Permits required on a case-by-
case basis,
*****
(c) * * * (see 40 CFR 122.26 (a)(l)(v),
(c)(l)(v), and (g)(lMi)) * * * The
discharger must apply for a permit
under 40 CFR 122.26 (a)(l)(v) and
(c)(l)(v) within 60 days of notice or
under 40 CFR 122.26(g)(l)(i) within 180
days of notice, unless permission for a
later date is granted by the Regional
Administrator. * * *
!FR Doc. 95-19191 Filed 8-4-95; 8:45 am]
BILLING CODE 6580-SO-P
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