[Federal Register Volume 60, Number 67 (Friday, April 7, 1995)]
[Rules and Regulations]
[Pages 17950-17957]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8209]
[[Page 17949]]
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Part IV
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 122 and 124
National Pollutant Discharge Elimination System (NPDES) Permits for
Storm Water Discharges; Amendment to Requirements; Final Rule and
Proposed Rule
Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules
and Regulations
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[[Page 17950]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 122 and 124
[FRL-5182-8]
RIN 2040-AC60
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: Direct final rule.
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SUMMARY: Today, EPA is promulgating changes to its National Pollutant
Discharge Elimination System (NPDES) storm water permit application
regulations under the Clean Water Act (CWA) to establish a sequential
application process for all phase II storm water discharges. (Phase II
storm water discharges include all discharges composed entirely of
storm water, except those specifically classified as phase I
discharges. Phase I discharges include discharges 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 EPA or an
NPDES State/Indian Tribe determine to be contributing to a violation of
a water quality standard or a significant contributor of pollutants to
the waters of the United States.) Application deadlines are in two
tiers. This action will provide the NPDES permitting authority (either
a State/Indian Tribe or EPA) flexibility to target those phase II
dischargers that are contributing to a water quality impairment or are
a significant contributor of pollutants for permitting within the next
six years. All other phase II dischargers are required to apply for a
permit only after six years, and only if the phase II regulatory
program in place at that time requires such applications.
EPA has also initiated a process by inviting its partners who are
stakeholders in this matter to assist in the development of additional
phase II rules, which will be finalized by March 1, 1999. These rules
will determine the nature and extent of requirements, if any, that will
apply to the various types of phase II facilities. Both the changes to
the rules issued today as well as the development of the comprehensive
phase II program through an inclusionary process is a response by EPA
to the direction of the President on February 21, 1995, regarding
regulatory reform.
DATES: This final rule will be effective on August 2, 1995 unless
significant adverse or critical comments that would cause the Agency to
change its position are received by June 6, 1995. In accordance with 40
CFR 23.2, this rule shall be considered final for purposes of judicial
review at 1 p.m. (Eastern time) on August 2, 1995.
ADDRESSES: Written comments on this rule may be submitted using one of
two different methods. See SUPPLEMENTARY INFORMATION for information on
submitting comments.
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:
Submission of Comments
First, comments may be sent to the Comment Clerk, Water Docket
(Storm Water Phase II Direct Final Rule), MC-4101, Environmental
Protection Agency, 401 M Street, SW, Washington DC 20460. It is
requested that an original and one copy of the comments be provided to
this address. Comments will be considered to be timely if they are
postmarked by June 6, 1995. Commenters who would like acknowledgment of
receipt of their comments should include a self-addressed, stamped
envelope. No facsimiles (faxes) will be accepted.
In the alternative, EPA will accept comments electronically; EPA is
experimenting with electronic commenting. Comments should be addressed
to the following Internet address: [email protected]
Electronic comments must be submitted as an ASCII file avoiding the use
of special characters and any form of encryption. Electronic comments
will be transferred into a paper version for the official record. EPA
will attempt to clarify electronic comments if there is an apparent
error in transmission. Comments provided electronically will be
considered timely if they are submitted electronically by 11:59 p.m.
(Eastern time) June 6, 1995. Since this is still experimental,
commenters may want to submit both electronic comments and duplicate
paper comments. This document has also been placed on the Internet for
public review and downloading at the following location:
gopher.epa.gov.
A copy of the supporting information for this rule is available for
review 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.
I. Overview of Today's Action
Today, EPA is promulgating changes to its NPDES storm water permit
application regulations under the CWA to establish a commonsense
approach which will provide for a sequential application process for
all phase II storm water discharges. Application deadlines are in two
tiers. To obtain real environmental results earlier, the highest
priority is being assigned to those phase II dischargers that the NPDES
permitting authority (either a State/Indian Tribe or EPA) determines
are contributing to a water quality impairment or are a significant
contributor of pollutants. These dischargers will be required to apply
for a permit to the permitting authority within 180 days of receipt of
notice, unless permission for a later date is granted. This process
will allow the permitting authority to focus their current efforts on
those facilities that will produce the greatest environmental benefit
earlier. All phase II facilities that are not designated shall apply to
the permitting authority no later than six years from the effective
date of this regulation, and only if the phase II regulatory program in
place at that time requires such applications. EPA is also establishing
application requirements for these discharges, as well as making other
conforming changes to other portions of its NPDES regulations.
Today's action is the first step in EPA's approach to develop a
comprehensive phase II program under Clean Water Act (CWA) section
402(p)(6) and is consistent with President Clinton's February 21, 1995,
direction on regulatory reform as well as the Office of Water's
``National Program Agenda for the Future.'' EPA cannot deal with all
storm water issues in today's action. Some issues raised by
stakeholders, such as funding for storm water best management practices
and certain issues with regard to compliance with water quality
standards, can only be resolved by legislative action. In fact, EPA
supported certain statutory changes or clarifications to the storm
water program last year in President Clinton's Clean Water Initiative.
Some issues, such as the nature and extent of requirements, if any,
that will apply to the various types of phase II sources, can be
resolved through rulemaking. EPA has initiated a process of inviting
its partners who are stakeholders to participate in development of
[[Page 17951]] expectations and requirements for more comprehensive
phase II rules, as well as revisions and refinements to phase I. EPA
expects stakeholders will consider the lessons learned from the phase I
storm water program in relooking at the phase I application process and
requirements. EPA intends to propose those rules by September 1, 1997,
and finalize those rules by March 1, 1999. If the CWA is amended in a
manner to deal with these storm water issues, EPA will move to
expeditiously implement the statutory changes. Today's rulemaking will
promote the public interest by relieving dischargers of the requirement
to apply for permits until (1) a phase II program is in place that can
be defined by regulation or changes to the statute or (2) the
permitting authority makes an affirmative finding of the need for a
permit to protect water quality.
II. Background
A. Phase I of the Storm Water Program
The Clean Water Act
The 1972 amendments to the Federal Water Pollution Control Act
(referred to as the Clean Water Act) prohibit the discharge of any
pollutant to navigable waters from a point source unless the discharge
is authorized by a NPDES permit. While water pollution control measures
in the United States for industrial process wastewater and municipal
sewage have had major success, urban and agricultural runoff continue
to contribute to our Nation's remaining water quality problems. EPA's
Report to Congress under section 305(b) entitled The National Water
Quality Inventory, 1992 Report to Congress, provides a national
assessment of surface water impacts associated with runoff from various
land uses. The latest report concludes that storm water runoff from a
number of diffuse sources, including municipal separate storm sewers
and urban runoff is a leading cause of water quality impairment cited
by States.
Section 402(p) was added to the CWA in 1987 to require
implementation of a comprehensive two-phased approach for addressing
storm water discharges under the NPDES program. Section 402(p)(1)
currently prohibits EPA or NPDES States (including Indian Tribes
authorized to operate the NPDES program) from requiring permits for
discharges composed entirely of storm water (storm water discharges)
until October 1, 1994, except for the following five classes of phase I
storm water discharges specifically listed under section 402(p)(2):
(a) discharges issued a permit before February 4, 1987,
(b) discharges associated with industrial activity,
(c) discharges from a municipal separate storm sewer system serving
a population of 250,000 or more,
(d) discharges from a municipal separate storm sewer system serving
a population of 100,000 or more but less than 250,000,
(e) discharges that EPA or an NPDES State [or Tribe authorized to
be treated as a State for this purpose] determine to be contributing to
a violation of a water quality standard or a significant contributor of
pollutants to the waters of the United States. (EPA issued guidance on
August 8, 1990 that included a discussion of designation authority.)
Under CWA section 402(l)(2), permits are not required for certain
dischargers, specifically, storm water runoff from mining operations or
oil and gas facilities * * * if the storm water discharge is not
contaminated by contact with * * * any overburden, raw material,
intermediate product, finished product, byproduct, or waste product
located on the site of such operations. CWA section 502(14) excludes
agricultural storm water discharges from the definition of point
source, thereby excluding these discharges from the NPDES permit
requirement.
Section 402(p)(3) established requirements for permits issued under
phase I of the storm water program while section 402(p)(4) established
statutory deadlines for the initial steps in implementing the phase I
program.
Phase I Regulatory Program
EPA promulgated regulations defining application requirements in 40
CFR 122.26 for phase I storm water discharges on November 16, 1990 (55
FR 47990). Permits are required for large (over 250,000 population
served) and medium (100,000-250,000 population served) municipal
separate storm sewer systems (MS4); storm water discharges issued a
permit before February 4, 1987; storm water discharges ``associated
with industrial activity,'' which are identified in the regulations by
11 specific categories; and those dischargers designated by the NPDES
State or EPA.
EPA amended the November 1990 application regulations in various
respects in 1992 in response to a court ruling in NRDC v. EPA, 966 F.2d
1292 (9th Cir., 1992) in which EPA established generally applicable
permit issuance deadlines. In addition, EPA noted that the Agency was
not requiring permit applications from the two categories of storm
water discharges associated with industrial activity (construction
activities disturbing less than 5 acres and light industry without
exposure to storm water) until application requirements were
established by regulation. (57 FR 60444, December 18, 1992.)
Phase I Implementation Activities
The efforts of EPA and the authorized NPDES States to implement the
phase I storm water program have focused on (1) issuing general permits
for industrial storm water discharges, (2) reviewing group applications
for industrial storm water dischargers, (3) publishing a proposed
multi-sector general permits for storm water discharges from 29
industrial sectors, (4) reviewing applications and issuing permits for
municipal separate storm sewer systems, and (5) conducting outreach
activities.
B. Phase II of the Storm Water Program.
Water Quality Act of 1987 and Later Amendments
The 1987 amendments established a process for EPA to evaluate
potential phase II sources and designate sources for regulation to
protect water quality.
Section 402(p)(5) requires EPA, in consultation with the States, to
conduct two studies of storm water discharges other than phase I
sources (i.e., potential phase II sources). The first study, under
section 402(p)(5) (A) and (B) (to be completed by October 1, 1988), was
to identify storm water discharges not covered under phase I and
determine, to the maximum extent practicable, the nature and extent of
pollutants in such discharges. The second study, under section
402(p)(5)(C) (to be completed by October 1, 1989), was to establish
procedures and methods to control storm water discharges to the extent
necessary to mitigate impacts on water quality.
Section 402(p)(6) of the CWA requires EPA, in consultation with
State and local officials and based on the findings of the reports
required under section 402(p)(5), to issue regulations that designate
additional storm water discharges to be controlled to protect water
quality under phase II of the program and to establish a comprehensive
program to regulate such designated sources. The program shall, at a
minimum, establish priorities, requirements for State storm water
management programs, and expeditious deadlines. The program may include
performance standards, guidelines, guidance, and management practices
and treatment requirements, as appropriate. These regulations were to
be issued by October 1, 1993. EPA did [[Page 17952]] not issue these
regulations by the statutory deadline. Today's action is a common sense
approach which defines and establishes application submittal
requirements for phase II of the NPDES program for storm water. As
noted below, EPA will be revising these requirements over the next
several years in partnership with its numerous stakeholders.
September 9, 1992 Notice Phase II Issues
On September 9, 1992, EPA published a notice requesting information
and public comment on the phase II program (57 FR 41344). The notice
identified three sets of issues associated with developing phase II
regulations, including (1) how sources should be identified, (2) types
of control strategies for these sources, and (3) deadlines for
implementing the requirements. The notice presented a range of
alternatives under each issue in an attempt to illustrate, and obtain
input on, the full range of potential approaches for a phase II
strategy. EPA received more than 130 comments on the notice from
municipalities, trade groups or industries, State or Federal agencies,
and other miscellaneous sources. No comments were received from
environmental groups.
Rensselaerville Phase II Effort
In early 1993, the Rensselaerville Institute and EPA held public
and expert meetings to assist in developing and analyzing options for
identifying phase II sources and controls. One of the options most
favored by the various groups participating included use of a tiered
approach that would provide for EPA selection of high priority sources
for control by NPDES permits and State selection of other sources for
control under a State program other than the NPDES program.
Storm Water Reports to Congress
EPA is transmitting to Congress concurrently with this action, its
first report required under sections 402(p)(5) (A) and (B). This report
is contained in the record for this rule. This report was broadly
circulated in November 1993 by the Agency to the States, trade groups,
environmental groups, Congressional staff, other interested parties,
and all people who requested a copy. EPA received comments from various
States and other groups and made changes, as appropriate, to respond to
those comments.
Section 402(p)(5)(C) requires a second study of storm water
discharges for the purpose of establishing procedures and methods to
control storm water discharges that were not addressed as part of the
first phase of the NPDES storm water program to the extent necessary to
mitigate impacts on water quality. President Clinton's Clean Water
Initiative, which was released on February 1, 1994, contains the
Agency's recommendations for phase II and is considered by EPA to be
the second Report to Congress. EPA has included these materials in its
report that is being submitted to Congress.
President Clinton's Clean Water Initiative
President Clinton's Clean Water Initiative addresses a number of
issues associated with NPDES requirements for storm water discharges,
including (1) establishing a phased approach for compliance of
discharges from municipal separate storm sewer systems with water
quality standards with a focus on controlling discharges from growth
and development areas, (2) clarifying that the Maximum Extent Practical
standard should be applied in a site specific, flexible manner taking
into account cost considerations as well as water quality effects, (3)
providing for an exemption from the storm water program for industrial
facilities with no activities or no significant materials exposed to
storm water, (4) providing for deadline extensions for phase II of the
storm water program, (5) providing for a targeted approach for phase II
storm water program requirements, including regulation of storm water
from industrial facilities by municipalities, and (6) providing for
control of discharges from inactive and abandoned mines located on
Federal lands in a more targeted, flexible manner.
Several bills to reauthorize the CWA which include amendments to
NPDES requirements for storm water were introduced in the House and
Senate in the 103rd Congress; however, substantive changes to the CWA
were not made. Provisions contained in the President's Initiative, as
well as the other bills, will be considered by the Agency in its
comprehensive rulemaking involving stakeholders, to the extent the
Agency is authorized to make changes discussed there under existing
law.
The Agency recognizes that there may be action in the 104th
Congress to change storm water requirements. Stakeholders have raised
some issues that go well beyond the scope of EPA's regulatory authority
and can only be addressed by legislation. Certain parties have
requested that the Agency delay issuance of this regulation until
Congress acts. EPA is obligated to implement the current law and is
taking this action to provide certainty to phase II dischargers as to
when their permit applications are due if relief is not provided
through regulatory or legislative action. EPA is willing to work with
affected parties on statutory issues and, if the law is changed, will
move to expeditiously implement the changes.
October 1, 1994, Deadline for Permits under Phase II
On October 18, 1994, EPA issued guidance interpreting the October
1, 1994, statutory deadline pertaining to phase II storm water
dischargers. The memorandum recognized that EPA had not issued
regulations implementing the requirements of section 402(p)(6) before
October 1, 1994; and the Agency and approved NPDES States are unable to
waive the statutory requirement that point source discharges of
pollutants to waters of the United States need an NPDES permit. The
memorandum also recognized that at the time of the guidance, EPA had
completed a draft study identifying potential point source discharges
of storm water for regulatory consideration under the requirements of
section 402(p)(6) (as noted, EPA is transmitting the Reports to
Congress); and the Agency had initiated a process to develop
implementing regulations (of which today's action is a part). The
guidance also referred to the general application requirements for the
NPDES program and the Agency's January 12, 1994, storm water
enforcement strategy.
EPA Instituting Federal Advisory Committee Effort
The Agency has established a Federal Advisory Committee Act
advisory committee to provide advice on various wet weather issues. EPA
will work with a subcommittee of this advisory committee to form a
partnership to specifically address phase II storm water issues. This
action will complement the specific regulatory action EPA is taking
today. Both actions are part of the Agency's response to the
President's direction on regulatory reform. EPA wants to develop a
common sense approach to allow EPA and the States/Indian Tribes to
manage for results in developing a phase II storm water program that
will provide ecosystem protection. EPA believes there is considerable
latitude and flexibility within the existing language contained in
section 402(p)(6) in establishing the scope and extent of the phase II
program and the nature of the controls used. Some questions EPA will
advance build upon the input the Agency has received earlier on phase
II, including questions [[Page 17953]] addressing (1) the scope,
mechanisms and timing of phase II, (2) how EPA can work more
effectively with the varying interests to provide outreach and
technical assistance for phase II, and (3) consideration of lessons
learned from phase I. EPA would be receptive to including in the
inclusionary process other issues that have developed broad-based
support; these issues may include research, cost-effective solutions
and expedited implementation. EPA is in the early stages of development
of the specifics of the phase II program, which can and will include
revisions and refinements to phase I, including relooking at the phase
I application process and requirements. EPA recognizes that many of the
municipalities and industrial facilities that are subject to the phase
I requirements believe there is a need to make major changes to phase
I.
EPA is committed to conducting this phase II process, including
improvements to limited portions of phase I, in an inclusionary manner,
inviting representatives of affected stakeholders ``to the table'' to
discuss their respective interests.
Today's regulatory action is being taken as a common sense approach
to provide a framework under existing law for these actions to be
undertaken in an orderly fashion, as well as certainty regarding the
status of phase II discharges. This approach will allow the permitting
authority to manage for results by providing the flexibility to call
certain phase II dischargers into the program based upon a finding of
water quality impact.
III. Today's Action
Regulation Changes
Today, EPA is promulgating changes to its NPDES storm water permit
application regulations to establish a sequential application process
for all phase II storm water discharges. Application deadlines are in
two tiers. To obtain real environmental results earlier, the highest
priority is being assigned to those phase II dischargers that the NPDES
permitting authority (either a State/Indian Tribe or EPA) determines
are contributing to a water quality impairment or are a significant
contributor of pollutants. These dischargers will be required to apply
for a permit within 180 days of receipt of notice from the permitting
authority, unless permission for a later date is granted. All other
phase II facilities will be required to apply to the permitting
authority no later than six years from the effective date of this
regulation if the phase II regulatory program in place at that time
requires such applications. EPA is also establishing application
requirements for these discharges, as well as making other conforming
changes to other portions of its NPDES regulations. The specifics of
the changes follow.
First, to codify the already existing statutory requirement upon
the expiration of the moratorium for phase II storm water discharges,
EPA is adding 40 CFR 122.26(a)(9) to bring into the NPDES program, as
of October 1, 1994, discharges composed entirely of storm water that
are not otherwise already required by the phase I regulations to obtain
a permit. EPA considers the portions of the two phase I categories that
were remanded by the court in NRDC v. EPA to be covered by these phase
II requirements, as are the facilities owned by municipalities that
were otherwise excluded from phase I by the Intermodal Surface
Transportation Efficiency Act of 1991 (Transportation Act). These phase
II storm water dischargers will be required to apply for a permit
according to the application requirements in new Sec. 122.26(g). This
provision continues to recognize the applicability of statutory NPDES
exemptions provided by CWA sections 402(l) and 502(14).
Second, EPA is adding 40 CFR 122.26(g), which will contain the
regulatory requirements for discharges composed entirely of storm water
under section 402(p)(6). Any operator of a point source required to
obtain a permit under Sec. 122.26(a)(9) shall submit an application in
accordance with the following requirements.
Section 122.26(g)(1) contains the application deadlines. If a phase
II discharger complies with these application deadlines, the facility
will not be subject to enforcement action for discharge without a
permit or for failure to submit a permit application. First, if the
permitting authority (the regulations use the term ``Director'' which
means either the NPDES State/Indian Tribe Director or EPA Regional
Administrator, or authorized representative) determines and notifies
the discharger that a discharge contributes to a violation of a water
quality standard or is a significant contributor of pollutants to
waters of the United States, the operator shall apply for a permit to
the permitting authority within 180 days of receipt of notice, unless
permission for a later date is granted (see 40 CFR 124.52(c)). This
provision will allow the NPDES permitting authority to manage for
environmental results by providing the flexibility to bring certain
phase II sources within the NPDES program at this time, as determined
necessary by the State/Indian Tribe or EPA. This determination can be
done on a watershed or class basis where the permitting authority
determines there is a significant impact or contribution. In addition,
the NPDES permitting authority may find the information contained in
the Storm Water Reports to Congress useful in determining the location
and nature of such impacts. The August 9, 1990, guidance EPA issued on
designation authority may be useful in making this determination. The
180 day time period provided for submission of an application is
consistent with the time period provided for other situations in the
NPDES program where a facility is asked to submit an application (40
CFR 122.21(c)(1) and (2)) and the time period generally provided for
applications for permit renewal (40 CFR 122.21(d)). EPA recognizes that
this time period is longer than that provided by existing regulations
for those phase I storm water dischargers designated into the program
(40 CFR 122.26(e)(5)). EPA is establishing this longer time period to
provide an opportunity for the phase II discharger to communicate with
the permitting authority about necessary information, as well as to
collect and submit the application information.
All other phase II facilities shall apply to the State/ Indian
Tribe or EPA Region no later than six years from the effective date of
this regulation. EPA may change this application deadline for at least
certain categories of dischargers in the future as part of the
rulemaking process involving its various partners dealing with the
scope, nature and extent to the phase II program. However, if changes
are not made, all phase II storm water dischargers will have to submit
applications by August 2, 2001.
Section 122.26(g)(2) contains provisions for application
requirements for phase II discharges. At this time, the existing phase
I individual industrial application requirements in Sec. 122.26(c)(1)
or application requirements for municipal separate storm sewer
discharges contained in Sec. 122.26(d) will be the requirements for
phase II discharges, unless otherwise modified by the permitting
authority. As noted earlier, EPA will be relooking at the application
requirements as part of the advisory committee on wet weather issues.
EPA is also specifically providing for and encouraging the use of
general permits for phase II discharges and would require submission of
a notice of intent to be covered by the general permit, consistent with
the current requirements of 40 CFR 122.28(b)(2) for phase I storm water
discharges. EPA and [[Page 17954]] the authorized States have
effectively and efficiently used general permits for phase I storm
water discharges and EPA believes general permits also will be an
effective mechanism to use in phase II, when NPDES permits are
required. Group applications for phase II discharges are not provided
for because the general permit process will be available to almost all
phase II discharges.
In developing phase II permits, the permitting authority may apply
the requirements contained in section 402(p)(3), which are the
requirements for phase I permits, on a case-by-case basis at this time
using best professional judgment.
EPA is also making several conforming changes to other portions of
40 CFR 122.26. First, EPA is changing the date for the permit
moratorium contained in Sec. 122.26(a)(1) to October 1, 1994, to
reflect the change in this date provided by the Water Resources
Development Act of 1992. Second, EPA is amending the title to
Sec. 122.26(e) to read ``Application deadlines under paragraph (a)(1)''
to make clear that these are phase I requirements and application
deadlines, as interpreted by EPA. Third, EPA is amending
Sec. 122.26(e)(1)(ii) which are the permit application requirements for
those municipally owned facilities for whom application deadlines were
postponed by the Transportation Act to reflect the fact that these are
now phase II facilities. (Section 1068(c) of the Transportation Act
amended the CWA to provide that EPA shall not require any municipality
with a population of less than 100,000 to apply for or obtain a permit
for any storm water discharge associated with industrial activity other
than an airport, power plant, or uncontrolled sanitary landfill owned
or operated by such municipalities before October 1, 1992.) Because EPA
is not making available the group application process in phase II,
similar changes are not being made to Sec. 122.26(e)(2).
EPA is also making changes to other applicable NPDES regulatory
provisions. EPA is modifying the requirements of 40 CFR 122.21(c)(1) to
clarify that new phase II storm water discharges do not have to submit
a permit application until six years after the effective date of this
regulation, or earlier if designated by the permitting authority. EPA
is making conforming changes to 40 CFR 124.52(c) to clarify the
application of these provisions to both phase I and phase II storm
water discharges.
Basis of Regulations
Today's action is the first step of EPA's approach to develop a
comprehensive phase II program under section 402(p)(6), and is
consistent with President Clinton's February 21, 1995, direction on
regulatory reform and the Office of Water's December 30, 1994,
``National Water Program Agenda for the Future.'' EPA has initiated an
inclusionary process involving its partners to develop more
comprehensive phase II rules; EPA intends to propose those rules by
September 1, 1997, and finalize those rules by March 1, 1999. In the
comprehensive phase II rulemaking, EPA will consider input from all
stakeholders, as well as the input that has already been provided to
the Agency on the phase II September 1992 notice and the 1993
Rensselaerville Institute phase II effort discussed earlier in this
notice. EPA will also consider the information in the Storm Water
Reports to Congress, and the recommendations in President Clinton's
Clean Water Initiative. Finally, EPA will implement any statutory
changes that are enacted during program development. Today's action is
based on recommendations in those documents to the extent they envision
an orderly, tiered process for regulation of storm water, allowing the
NPDES permitting authority to manage for results at this time. EPA is
considering making other changes to improve its operation of the phase
I storm water program in the comprehensive phase II rulemaking action,
including revising phase I municipal application requirements.
The regulation issued today fulfills, in part, the requirements
contained in section 402(p)(6) of the CWA. It is being issued by EPA
today after consultation with State, local officials, Indian Tribes,
and parts of the regulated and environmental community. The regulation,
which is the first of a sequential process, is consistent with the
information contained in the Storm Water Reports to Congress and the
President's Initiative as it is providing the framework of a tiered
implementation of phase II requirements, allowing the NPDES permitting
authority current flexibility to manage for results. The application
requirements allow the NPDES permitting authority to bring within the
phase II program at this time those phase II discharges impacting water
quality or who are a significant contributor of pollutants and, if EPA
does not take action to change its regulations, will require a permit
application from all phase II storm water discharges in 6 years.
The regulations also establish a comprehensive program containing
current permit application requirements. The permitting authority will
be able to establish appropriate permit requirements on a case-by-case
basis at this time. This first portion of the phase II program
establishes priorities and deadlines for permit applications, which, as
currently structured, will be a part of the NPDES program. These
requirements and changes to 40 CFR 122.26 and conforming changes to
other NPDES requirements in part 122 are required parts of State/Tribal
NPDES programs (see 40 CFR 123.25). The initial portion of the phase II
program which is being established today does not contain a
comprehensive set of performance standards, guidelines, guidance,
management practices, and treatment requirements. These conditions can
be established by the permitting authority on a case-by-case basis upon
permit issuance to designated phase II discharges. Finally, these
conditions may be further defined by EPA when it revises the phase II
program regulations as described above.
Today's action adopts a tiered approach for selection of high
priority sources to be controlled by NPDES permits, which was the lead
option presented for public comment in the September 1992 notice, and
one of the options most favored by the various groups participating in
the effort conducted in early 1993 by the Rensselaerville Institute and
EPA, as well as the Storm Water Reports to Congress and the President's
Clean Water Initiative. In its rulemaking effort, EPA believes there
will be discussion with its partners of other approaches that will
provide flexibility to the States to deal with sources that are not of
as high a priority using other frameworks and approaches.
In the September 1992 phase II notice, EPA invited comment on
various issues regarding phase II of the storm water program, including
the appropriate deadlines for implementing phase II requirements. The
comments EPA received on this issue generally recommended
implementation of phase II in stages and reiterated the need for time
to prepare regulations and to conduct outreach to implement the
program, as well as the need to wait and study the results of
implementation of phase I of the program. The actions EPA is taking
today are consistent with these comments. [[Page 17955]]
Supporting Documentation
A. 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 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. This rule was
submitted to OMB for review.
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
public comment period on these actions.
Specifically, EPA has discussed this action with the
representatives of the States, locals 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 the 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, to the
Agency 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 including the legal basis of its action and
potential changes to the statute in this preamble. EPA did consult with
various representatives of local governments early in the development
of this regulation as well as more comprehensively in February.
The reaction of EPA's AIEO is positive; the Office of Water will
work through the AIEO to provide for a Tribal representative to
participate in the inclusionary process.
EPA believes that it has developed an effective process to obtain
input from State, Tribal and local governments before issuance of 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. 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. The basis for this
determination is through today's action EPA is benefiting small
entities as this action (1) adopts a common sense approach to deal with
the issue of storm water phase II requirements, (2) provides the
ability for the State/Tribe or EPA to manage for results by providing
flexibility to the permitting authority to deal with storm water phase
II permitting at this time based on water quality violations or
significant contribution of pollutants, and (3) clarifies and reduces
currently applicable burdens for those facilities current subject to
phase II statutory requirements. Finally, the Agency is committed to
issue its comprehensive storm water phase II program 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 [[Page 17956]] plan for informing and advising any
small governments that may be significantly and uniquely affect 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 comment process for public
consideration of reasonable alternative approaches for the phase II
storm water program. Today's rule provides for the first step for any
of those alternatives by providing for an orderly process for
development of 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 be develop in further development of
storm water phase II rules in the course of the wet weather advisory
committee convened for this purpose. That committee will also provide
advice related to reconsideration of existing application requirements
that already affect small governments.
F. Administrative Procedure Requirements
The Agency is publishing this action as a ``direct final'' rule. A
direct final rule is not an ``interim final'' rule (i.e. a rule which
provides for public comment after it has gone into effect); rather it
is a rule which is published with a delayed effective date allowing for
the receipt of and response to public comment before the rule goes into
effect. A response to all comments received will be placed in the
docket for this rulemaking prior to the effective date. This rulemaking
thus fully complies with notice-and-comment requirements under the
Administrative Procedure Act (APA). EPA has chosen to use the direct
final approach for this rule because the Agency does not expect to
receive significant adverse or critical comment and to allow for the
most expeditious implementation possible, consistent with the APA.
Because in the absence of this rule, thousands of municipalities and
other storm water discharges are currently operating in violation of
the CWA, EPA believes that prompt implementation of this rule is very
important.
However, consistent with APA requirements, if EPA does receive
significant adverse or critical comment, EPA will withdraw this rule
prior to its effective date and proceed with a normal rulemaking
process. As a result, elsewhere in today's Federal Register, EPA is
also proposing this rule. If EPA decides to withdraw the direct final
rule based on public comment, EPA will proceed with rulemaking based on
this proposal. There will not be an additional comment period, so
parties interested in commenting on the proposed rule should do so at
this time.
List of Subjects
40 CFR Part 122
Administrative practice and procedure, Confidential business
information, Hazardous substances, Reporting and recordkeeping
requirements, Water pollution control.
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: March 29, 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 Sec. 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 is amended as follows:
a. In paragraph (a)(1) introductory text by revising ``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) introductory text as set
forth below;
d. In paragraph (e)(1)(ii) by revising the phrase ``permit
applications requirements are reserved'' to read ``permit application
requirements are contained in paragraph (g) of this section''.
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, discharges 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 discharge 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
[[Page 17957]]
(ii) All other discharges shall apply to the Director no later than
August 2, 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 is amended by revising the parenthetical
statement in paragraph (c) 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)) *
* *
6. Section 124.52 is amended by revising the next to the last
sentence in paragraph (c) to read as follows:
Sec. 124.52 Permits required on a case-by-case basis.
* * * * *
(c) * * * 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. 95-8209 Filed 4-6-95; 8:45 am]
BILLING CODE 6560-50-P
