03-10762. Notice of Final Issuance of a National Pollutant Discharge Elimination System (NPDES) General Permit for Storm Water Discharges From Small Municipal Separate Storm Sewer Systems in the States of Massachusetts and New Hampshire and Indian ...

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of Final Issuance of NPDES General Permits MAR040000; NHR040000; MAR04000I; CTR04000I; RIR04000I and VTR04000F.

SUMMARY:

The Environmental Protection Agency—Region 1, is today providing notice of final issuance of a National Pollutant Discharge Elimination System (NPDES) general permits for storm water discharges from small municipal separate storm sewer systems (MS4s) in the States of Massachusetts, New Hampshire, for federal facilities in the State of Vermont, and for Indian Country lands in the States of Connecticut, Massachusetts, and Rhode Island. The final NPDES general permits establish Notice of Intent (NOI) requirements, standards, prohibitions, and management practices for discharges of storm water from municipal separate storm sewer systems.

Owners and/or operators of small MS4s that discharge storm water will be required to submit an NOI to EPA—Region 1 to be covered by the general permit and will receive a written notification from EPA—Region 1 of permit coverage and authorization to discharge under the general permit. This general permit does not cover new sources as defined at 40 CFR 122.2.

DATES:

The effective date of the permit is May 1, 2003. The permit will expire five years from the effective date. The Notice of Intent required by the permit must be submitted no later than July 30, 2003.

ADDRESSES:

The final permit is based on an administrative record available for public review at EPA—Region 1, Office of Ecosystem Protection (CMU), 1 Congress Street, Suite 1100, Boston, Massachusetts 02114-2023. Copies of information in the record are available upon request. A reasonable fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT:

Additional information concerning the final permit may be obtained between the hours of 9 a.m. and 5 p.m. Monday through Friday excluding holidays from: Thelma Murphy, Office of Ecosystem Protection, Environmental Protection Agency, 1 Congress Street, Suite 1100, Boston, MA 02114-2023; telephone: [phone]; e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

The final general permit and the Response to Comments may be viewed over the Internet via the EPA—Region 1 Web site http://www.epa.gov/​ne/​npdes/​index.html. To obtain a hard copy of the document, please contact Thelma Murphy. Contact information is provided above. A reasonable fee may be charged for copying requests. The Response to Comments document addresses comments received on the draft permit and identifies parts of the final permit which were changed based on the comments received on the draft permit.

Pursuant to section 402 of the Clean Water Act, 33 U.S.C. 1342, EPA proposed and solicited public comment on NPDES draft general permits: MAR04000, NHR040000, MAR04000I, CTR04000I, RIR04000I and VTR04000F at 67 FR 61103 (September 27, 2002). Region 1 held four informational public meetings and one public hearing. The Region received comments from communities, transportation agencies, watershed associations, and private citizens. Based on the comments received, some changes were made to the permit. Two addenda, one for endangered species and the other for historic properties, were added to the final permit. The purpose of the addenda is to provide guidance for municipalities in determining permit eligibility regarding endangered species and historic properties. Watershed specific requirements contained in the Massachusetts section of the general permit have been removed. Infiltration language has been clarified. Record retention has been increased from three years to five years. Other comments and questions are addressed in the response to comments document.

Other Legal Requirements

A. State Certification

Under section 401(a)(1) of the Act, EPA may not issue an NPDES permit until the state in which the discharge will originate grants or waives certification to ensure compliance with appropriate requirements of the Act and state law. The Region received certifications from the Commonwealth of Massachusetts and the State of New Hampshire.

B. Economic Impact (Executive Order 12866)

Under Executive Order 12866 (58 FR 51735 (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 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; create a serious inconsistency or otherwise interfere with an action taken or planned by another agency, materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or 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 general permit is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to formal OMB review prior to proposal.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 601 et seq, requires that EPA prepare a regulatory flexibility analysis for regulations that have a significant impact on a substantial number of small entities. The permit being issued is not a “rule” subject to the Regulatory Flexibility Act.

D. 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” on State, local and tribal governments and the private sector. UMRA uses the term “regulatory actions” to refer to regulations. ( See, e.g., UMRA section 201, “Each agency shall * * * assess the effects of Federal regulatory actions * * * (other than to the extent that such regulations incorporate requirements specifically set forth in law)” (emphasis added)). UMRA section 102 defines “regulation” by reference to section 658 of Title 2 of the U.S. Code, which in turn defines “regulation” and “rule” by reference to section 601(2) of the Regulatory Flexibility Act (RFA). That section of the RFA defines “rule” as “any rule for which the agency publishes a notice of proposed rulemaking pursuant to section 553(b) of the Administrative Procedure Act (APA), or any other law * * * ” NPDES general permits are not “rules” under the APA and thus not subject to the APA requirements to publish a notice of proposed rulemaking. NPDES general permits are also not subject to such a requirement under the Clean Water Act. While EPA publishes a notice to solicit public comment on draft general permits, it does so pursuant to the CWA section 402(a) requirement to provide “an opportunity for a hearing.” Thus, NPDES general permits are not “rules” for RFA or UMRA purposes.

Dated: April 21, 2003.

Robert W. Varney,

Regional Administrator, Region 1.