E8-25577. Reissuance of NPDES General Permits (GPs) for Log Transfer Facilities in Alaska; One GP Covers Log Transfer Facilities in Alaska that Received a Section 404 Permit Prior to October 22, 1985 (Permit Number AK-G70-0000); and Another GP for ...

AGENCY:

Environmental Protection Agency.

ACTION:

Final Notice of Issuance of two general NPDES permits.

SUMMARY:

The Director of the Office of Water and Watersheds, EPA Region 10, is publishing notice of the final National Pollutant Discharge Elimination System (NPDES) general permits (numbers AK-G70-0000 and AK-G70-1000) to provide Clean Water Act (33 U.S.C. 1251 et seq.) authorization for log transfer facilities (LTFs) operating in Alaska. General permit (GP) AK-G70-0000 (the “Pre-1985” GP) includes section 402 modifications to section 404 permits issued to LTFs prior to October 22, 1985, in accordance with section 407 of the Water Quality Act of 1987 (Pub. L. 100-4). All other LTFs can apply to be authorized to discharge under AK-G70-1000 (the “Post-1985” GP) if they meet eligibility requirements.

The final Post-1985 GP is a reissuance of a previously issued LTF GP that became effective on March 21, 2000, and was subsequently modified on April 27, 2004 (69 FR 19417). The Post-1985 GP expired on March 21, 2005, and has been administratively extended since that time. The final Pre-1985 GP contains additional modifications to section 404 permits issued to LTFs prior to October 22, 1985. The modifications implemented by the Pre-1985 GP became effective as of April 27, 2004, and such modifications did not expire because the section 404 permits have no expiration date. Because EPA is using a section 402 permit to implement the section 404 permit modifications, the Pre-1985 GP will expire in accordance with 40 CFR 122.46(a). In the Pre-85 GP, if a facility meets the eligibility criteria, the facility timely submitted a new Notification at least 180 days prior to March 21, 2005, and unless LTF operations have materially changed since submission of that Notification, the operator of that facility is not required to submit a new Notification, but may: (i) Adopt the previously filed Notification in a written adoption letter to EPA and Alaska Department of Environmental Conservation (“ADEC”) no later than 90 days after the effective date of this permit; and (ii) in that adoption letter include the information required by subparagraphs D.4.d and D.4.e of Section IV. If a facility timely did not submit a Notification at least 180 days prior to March 21, 2005, written Notification must be submitted to EPA and ADEC within 90 days of the effective date of this general Permit. If a facility has not operated since March 7, 2000, and wishes to begin operations more than 90 days after the effective date of this Pre-85 permit, the facility must provide the Notification required by Section IV, to EPA and ADEC no later than 60 days prior to beginning discharges (see Parts I.A. and IV. of the Pre-85 GP).

In the Post-85 GP, owners or operators of a new LTF seeking authorization to discharge under this general permit must submit a NOI to EPA and ADEC at least sixty (60) days prior to anticipated commencement of operation and discharge (see Part V.C). For an existing LTF, if a facility timely submitted an NOI under 40 CFR 122.6 at least 180 days prior to the expiration of the previously issued general permits and unless LTF operations have materially changed since submission of that NOI, the operator of that facility is not required to submit a new NOI, but may: (i) Adopt the previously filed NOI in a written adoption letter to EPA and ADEC no later than 60 days after the effective date of this permit; and (ii) in that adoption letter, include the information required by subparagraphs D.4.d. and D.4.e of Part V. (see Part V.C of the Post-85 GP).

A fact sheet has been prepared which sets forth the principle factual, legal, policy, and scientific information considered in the development of the general permits. Both GPs contain a combination of technology-based requirements, best professional judgment and water quality-based effluent limits, standards, or conditions.

EPA received comments on the GPs during the public comment period, and has prepared a Response to Comments to explain changes made in the permits based on the comments and reasons for not making changes.

DATES:

The GPs will become effective on December 1, 2008. The permits will expire on November 30, 2013.

Public Comment: Pursuant to section 402 of the Clean Water Act, 33 U.S.C. 1342, EPA proposed to reissue the general permits and solicited comments on the draft general permits in the Federal Register on July 31, 2007. Notices of the draft general permits were also published in the Anchorage Daily News and the Ketchikan Daily News on July 27, 2007. There was a 60-day public comment period from July 27, 2007, to September 25, 2007. On September 6, 2007, EPA and ADEC held a Public Meeting and a Public Hearing concerning the then proposed GPs in Centennial Hall and Convention Center in Juneau, Alaska.

ADDRESSES:

Copies of the GPs and the Response to Comments may be requested from Audrey Washington, EPA Region 10, 1200 Sixth Avenue, Suite 900, OWW-130, Seattle, WA 98101 or by e-mail to: [e-mail].

FOR FURTHER INFORMATION CONTACT:

Copies of the general permits, fact sheet, and response to comments are available on the EPA Region 10 Web site at http://yosemite.epa.gov/​R10/​WATER.NSF/​NPDES+​Permits/​General+​NPDES+​Permits. They can also be requested by phone from Audrey Washington at [phone].

SUPPLEMENTARY INFORMATION:

State Water Quality Standards and State Certification

On October 10, 2008, ADEC provided two certifications that both GPs would comply with section 401 of the Clean Water Act. ADEC also certified that the permits would comply with the Alaska State Water Quality Standards (Alaska Administrative Code 18 AAC70), including the State's antidegradation policy.

National Environmental Policy Act

The National Environmental Policy Act (NEPA) at 42 U.S.C. 4322, requires Federal agencies to conduct an environmental review of their actions (including permitting activity) that may significantly affect the quality of the human environment. EPA regulations which implement NEPA (40 CFR 6) clarify this requirement as it pertains to NPDES permitting actions for new sources of discharge types with promulgated effluent limitation guidelines. No effluent limitation guidelines have been proposed or promulgated for discharges from LTFs pursuant to CWA Section 306, thus, new LTFs that may seek to discharge under the proposed GPs do not meet the criteria for new sources. Therefore, a NEPA environmental review is not required for the permits.

Endangered Species Act

Section 7 of the Endangered Species Act requires EPA to consult with the U.S. Fish and Wildlife Service and NOAA Fisheries regarding the potential effects that an action may have on listed endangered or threatened species or their critical habitat. To address these ESA requirements, and in support of EPA's informal consultation with the Services, a Biological Evaluation (BE) was prepared to analyze these potential effects. During the development of the draft general permits, information provided by the Services was used to identify 12 species of interest for consideration in the BE. The results of the BE concluded that discharges from LTFs will either have no effect or are not likely to adversely affect threatened or endangered species in the vicinity of the discharge. The fact sheet, the draft permits and the BE had been mailed to the Services for consistency with those programs established for the conservation of endangered and threatened species.

Magnuson-Stevens Fishery Conservation and Management Act

Section 305(b) of the Magnuson-Stevens Act [16 U.S.C. 1855(b)] requires Federal agencies to consult with NOAA Fisheries when any activity proposed to be permitted, funded, or undertaken by a Federal agency may have an adverse effect on designated Essential Fish Habitat (EFH) as defined by the Act. To address the requirements of the Magnuson-Stevens Act, EPA prepared an EFH Assessment concluding that LTF operations are not likely to have an adverse effect on EFH as the total area likely to be adversely impacted is an extremely small proportion of the total available habitat.

Alaska Coastal Management Program

The State of Alaska, Department of Natural Resources (ADNR), Office of Project Management and Permitting (OPMP), reviewed this permitting action for consistency as provided in section 307(c)(3) of the Coastal Zone Management Act of 1972, as amended [16 U.S.C. 1456(c)(3)]. EPA has determined that the activities authorized by the proposed GPs are consistent to the maximum extent practicable with the state's Coastal Zone Management Plan. On November 6, 2007, EPA received concurrence from the ADNR OPMP prior to issuing the final permits.

Executive Order 12866

EPA has determined that these GPs are not “significant regulatory action” under the terms of Executive Order 12866 and are therefore not subject to OMB review.

Paperwork Reduction Act

The information collection requirements of this permit were previously approved by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and assigned OMB control numbers 2040-0086 (NPDES permit application) and 2040-0004 (discharge monitoring reports).

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., requires that EPA prepare a regulatory flexibility analysis for rules subject to 5 U.S.C. 553(b) that have a significant impact on a substantial number of small entities. Although general permits are considered to be adjudications and not rules and therefore are not legally subject to the Regulatory Flexibility Act, as a matter of policy EPA is evaluating on an individual basis whether or not a specific general permit would have a significant economic impact on a substantial number of small entities. Upon considering EPA's current guidance, entitled Final Guidance for EPA Rulewriters: Regulatory Flexibility Act as Amended by the Small Business Regulatory Enforcement and Fairness Act, and the fact that each of these general permits affects less than 100 facilities, EPA concludes that these general permits do not have a significant economic impact on a substantial number of small entities and that the RFA does not call for further quantitative analysis of impacts.

Unfunded Mandates Reform Act

Section 201 of the Unfunded Mandates Reform Act (UMRA), Public Law 104-4, generally requires Federal agencies to assess the effects of their “regulatory actions” (defined to be the same as “rules” subject to the RFA) on tribal, state, and local governments and the private sector. However, general NPDES permits are not “rules” subject to the requirements of 5 U.S.C. 553(b) and are therefore not subject to the UMRA.

Appeal of Permits

Any interested person may appeal the general permits in the Federal Court of Appeals in accordance with Section 509(b)(1) of the Clean Water Act. This appeal must be filed within 120 days after the permit effective date. Persons affected by the permits may not challenge the conditions of the permits in further EPA proceedings (See 40 CFR 124.19). Instead they may either challenge the permit in court or apply for an individual NPDES permit.

Signed this 20th day of October, 2008.

Michael F. Gearheard,

Director, Office of Water and Watersheds, Region 10.