[Federal Register Volume 60, Number 151 (Monday, August 7, 1995)]
[Rules and Regulations]
[Pages 40230-40235]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19191]
[[Page 40229]]
_______________________________________________________________________
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
Federal Register / Vol. 60, No. 151 / Monday, August 7, 1995 / Rules
and Regulations
[[Page 40230]]
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.
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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 of less than 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, light
industrial and institutional facilities, construction activities under
five acres, and from municipal separate storm sewer systems serving
populations of less than 100,000.
\1\ 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.
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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
[[Page 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)(1) 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, 106 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)(1) did not alter the
basic underlying prohibition in Section 301(a) as it applied to storm
water discharges. Section 402(p)(1) 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 systems
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)(1) 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)(1) 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)(1) 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 (1) designate storm
[[Page 40232]]
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.
[[Page 40233]]
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
[[Page 40234]]
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.
[[Page 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)(1) to read as follows:
Sec. 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 Sec. 122.26(a)(1), shall apply for
and obtain a permit according to the application requirements in
Sec. 122.26(g).
3. Section 122.26(a)(1) is amended as follows:
a. In paragraph (a)(1) 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)(1)(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.
Sec. 122.26 Storm water discharges (applicable to State NPDES
programs, see Sec. 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)(1) 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 Secs. 122.2 and 122.3.
* * * * *
(e) Application deadlines under paragraph (a)(1). * * *
* * * * *
(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 with 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)(1) 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 122.28(b)(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 et seq.; 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:
Sec. 124.52 Permits required on a case-by-case basis.
* * * * *
(c) * * * (see 40 CFR 122.26 (a)(1)(v), (c)(1)(v), and (g)(1)(i)) *
* * The discharger must apply for a permit under 40 CFR 122.26
(a)(1)(v) and (c)(1)(v) within 60 days of notice or under 40 CFR
122.26(g)(1)(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 6560-50-P
