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E-M:/ Stormwater discharges from Construction in Michigan



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Enviro-Mich message from "Alex J. Sagady & Associates" <ajs@sagady.com>
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[Federal Register: December 20, 2002 (Volume 67, Number 245)]
[Notices]
[Page 78115-78120]
 >From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20de02-133]

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ENVIRONMENTAL PROTECTION AGENCY
[FRL-7424-9]

Proposed National Pollutant Discharge Elimination System (NPDES)
General Permit for Storm Water Discharges From Construction Activities

AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of availability for comment.

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SUMMARY: EPA Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10 today are proposing
EPA's NPDES general permits for discharges from large and small
construction activity. Hereinafter, the terms ``permit'' or
``construction general permit'' or ``CGP'' will replace ``permits.''
Today's proposed permit will replace the existing permit covering large
construction sites in EPA Regions 1, 2, 3, 7, 8, 9 and 10 that expires
on February 17, 2003 and the permit covering large construction sites
in EPA Region 6 that expires July 6, 2003. Today's proposed permit
would also cover large construction sites in EPA Region 5. In addition,
today's proposed permit incorporates coverage of small construction
activity in EPA Regions 1, 2, 3, 5, 6, 7, 8, 9 and 10. Today's proposed
permit is similar to the 1998 permits and will authorize the discharge
of pollutants in storm water runoff associated with construction
activities in accordance with the terms and conditions described
therein.
     Note: EPA is also announcing its intention to propose, in a
subsequent rulemaking, to delay the permit authorization deadline set
forth in the NPDES regulations as it may relate to oil and gas
construction activity that disturbs between one and five acres of land.
The Agency intends to propose to delay this deadline in order to better
evaluate the impact of the permit requirements on the oil and gas
industry and the best management practices to prevent contamination of
storm water runoff, while analyzing the scope and effect of 33 U.S.C.
1342 (l)(2) and other provisions of the Clean Water Act.

DATES: Comments on the proposed general permit must be postmarked by
February 3, 2003.

ADDRESSES: Comments may be submitted electronically, by mail, or
through hand delivery/courier. Send written comments to: Follow the
detailed instructions as provided in Section I.B.

FOR FURTHER INFORMATION CONTACT: For further information on the
proposed NPDES general permit, contact the appropriate EPA Regional
Office listed in Section I.F, or contact Jack Faulk, Office of
Wastewater Management, Office of Water, EPA Headquarters at tel.: 202-
564-0768 or e-mail: <A HREF="mailto:faulk.jack@epa.gov";>faulk.jack@epa.gov</A>.

SUPPLEMENTARY INFORMATION:

I. General Information

A. How Can I Get Copies of This Document and Other Related Information?

     1. Docket. EPA has established an official public docket for this
action under Docket ID No. OW-2002-0055. The official public docket is
the collection of materials that is available for public viewing at the
Water Docket in the EPA Docket Center, (EPA/DC) EPA West, Room B102,
1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the Water
Docket is (202) 566-2426.
     2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at <A 
HREF="http://www.epa.gov/fedrgstr/";>http://www.epa.gov/fedrgstr/</A>.
     An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at <A 
HREF="http://www.epa.gov/edocket/";>http://www.epa.gov/edocket/</A> to 
submit or view public
comments, access the index listing of the contents of the official
public docket, and to access those documents in the public docket that
are available electronically. Once in the system, select ``search,''
then key in the appropriate docket identification number.
     Certain types of information will not be placed in the EPA Dockets.
Information claimed as CBI and other information whose disclosure is
restricted by statute, which is not included in the official public
docket, will not be available for public viewing in EPA's electronic
public docket. EPA policy is that copyrighted material will not be
placed in EPA's electronic public docket but will be available only in
printed, paper form in the official public docket. Although not all
docket materials may be available electronically, you may still access
any of the publicly available docket materials through the docket
facility identified in Section I.A.1.
     For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing in EPA's electronic public
docket as EPA receives them and without change, unless the comment
contains copyrighted material, CBI, or other information whose
disclosure is restricted by statute. When EPA identifies a comment
containing copyrighted material, EPA will provide a reference to that
material in the version of the comment that is placed in EPA's
electronic public docket. The entire printed comment, including the
copyrighted material, will be available in the public docket.
     Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to EPA's electronic public
docket. Public comments that are mailed or delivered to the Docket will
be scanned and placed in EPA's electronic public docket. Where
practical, physical objects will be photographed, and the photograph
will be placed in EPA's electronic public docket along with a brief
description written by the docket staff.

B. How and to Whom Do I Submit Comments?

     You may submit comments electronically, by mail, or through hand
delivery/courier. To ensure proper receipt by EPA, identify the
appropriate docket identification number in the subject line on the
first page of your comment. Please ensure that your comments are
submitted within the specified comment period. Comments received after
the close of the comment period will be marked ``late.'' EPA is not
required to consider these late comments.
     EPA seeks comment on the proposed permit and on the accompanying
fact sheet. EPA is not, at this time, seeking comment on a possible
proposed revision of the permit application deadline for storm water
discharges associated with small construction activity in 40 CFR
122.26(e)(8) as it may relate to oil and gas construction activity that
disturbs between one and five acres of land. When EPA proposes to make
such a revision, the Agency will seek comment on such proposal at that
time.
     1. Electronically. If you submit an electronic comment as
prescribed below, EPA recommends that you include your name, mailing
address, and an e-mail address or other contact information in the body
of your comment. Also include this contact information on the outside
of any disk or CD-ROM you submit, and in any cover letter accompanying
the disk or

[[Page 78117]]

CD-ROM. This ensures that you can be identified as the submitter of the
comment and allows EPA to contact you in case EPA cannot read your
comment due to technical difficulties or needs further information on
the substance of your comment. EPA's policy is that EPA will not edit
your comment, and any identifying or contact information provided in
the body of a comment will be included as part of the comment that is
placed in the official public docket, and made available in EPA's
electronic public docket. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment.
     i. EPA Dockets. Your use of EPA's electronic public docket to
submit comments to EPA electronically is EPA's preferred method for
receiving comments. Go directly to EPA Dockets at <A 
HREF="http://www.epa.gov/edocket";>http://www.epa.gov/edocket</A>
, and follow the online instructions for submitting comments.
Once in the system, select ``search,'' and then key in Docket ID No.
OW-2002-0055. The system is an ``anonymous access'' system, which means
EPA will not know your identity, e-mail address, or other contact
information unless you provide it in the body of your comment.
     ii. E-mail. Comments may be sent by electronic mail (e-mail) to ow-
<A HREF="mailto:docket@epa.gov";>docket@epa.gov</A>, Attention Docket ID No. 
OW-2002-0055. In contrast to
EPA's electronic public docket, EPA's e-mail system is not an
``anonymous access'' system. If you send an e-mail comment directly to
the Docket without going through EPA's electronic public docket, EPA's
e-mail system automatically captures your e-mail address. E-mail
addresses that are automatically captured by EPA's e-mail system are
included as part of the comment that is placed in the official public
docket, and made available in EPA's electronic public docket.
     iii. Disk or CD-ROM. You may submit comments on a disk or CD-ROM
that you mail to the mailing address identified in Section I.B.2. These
electronic submissions will be accepted in WordPerfect or ASCII file
format. Avoid the use of special characters and any form of encryption.
     2. By Mail. Send the original and three copies of your comments to:
Water Docket, Environmental Protection Agency, Mailcode: 4101T, 1200
Pennsylvania Ave., NW., Washington, DC, 20460, Attention Docket ID No.
OW-2002-0055.
     3. By Hand Delivery or Courier. Deliver your comments to: Public
Reading Room, Room B102, EPA West Building, 1301 Constitution Avenue,
NW., Washington, DC 20004, Attention Docket ID No. OW-2002-0055. Such
deliveries are only accepted during the Docket's normal hours of
operation as identified in Section I.A.1.

C. Public Hearings

     EPA has not scheduled any public hearings to receive public comment
concerning the proposed permits in view of the more informal public
meetings that will be held and limited attendance at previous hearings
which have been held related to the construction general permit. All
persons will continue to have the right to provide written comments at
any time during the public comment period. However, interested persons
may request a public hearing pursuant to 40 CFR 124.12 concerning the
proposed permit. Requests for a public hearing must be sent or
delivered in writing to the same address as provided above for public
comments prior to the close of the comment period. Requests for a
public hearing must state the nature of the issues proposed to be
raised in the hearing. Pursuant to 40 CFR 124.12, EPA shall hold a
public hearing if it finds, on the basis of requests, a significant
degree of public interest in a public hearing on the proposed permit.
If EPA decides to hold a public hearing, a public notice of the date,
time and place of the hearing will be made at least 30 days prior to
the hearing. Any person may provide written or oral statements and data
pertaining to the proposed permit at the public hearing.

D. Public Meetings

     EPA will be holding a series of more informal public meetings which
will include a presentation on the draft permits and a question and
answer session. Due to an informal public meeting's ability to
accommodate group discussion and question and answer sessions, public
meetings have been used for many storm water general permits and appear
to be more valuable than formalized public hearings in helping the
public understand a draft storm water permit and identify the issues of
concern. Written, but not oral, comments for the official permit record
will be accepted at the public meetings. Comments generated from what
was learned at a public meeting (or discussion with someone who did
attend) can be submitted any time up to the end of the comment period.
More information on these meetings will be available on the Internet at
<A 
HREF="http://www.epa.gov/npdes/stormwater";>http://www.epa.gov/npdes/stormwater</A> 
and on the various EPA Regional Web
sites (e.g. <A 
HREF="http://www.epa.gov/region6/sws";>http://www.epa.gov/region6/sws</A> 
for EPA Region 6, <A 
HREF="http://www.epa.gov/r10earth/stormwater.htm";>http://www.
epa.gov/r10earth/stormwater.htm</A> for EPA Region 10) as soon as dates
www.epa.gov/r10earth/stormwater.htm for EPA Region 10) as soon as dates
and locations have been finalized.

E. Finalizing the Permit

     After the close of the public comment period, EPA will issue a
final permit decision. This decision will not be made until after all
public comments have been considered and appropriate changes made to
the permit. A Responses to Comments will be included as part of the
final permit decision.

F. Who Are the EPA Regional Contacts for This Proposed Permit?

     For EPA Region 1, contact Thelma Murphy at tel.: (617) 918-1615 or
e-mail at <A HREF="mailto:murphy.thelma@epa.gov";>murphy.thelma@epa.gov</A>.
     For EPA Region 2, contact Karen O'Brien at tel.: (212) 637-3717 or
e-mail at <A HREF="mailto:obrien.karen@epa.gov";>obrien.karen@epa.gov</A> or 
for Puerto Rico, Sergio Bosques at
tel.: (787) 977-5838 or e-mail at <A 
HREF="mailto:bosques.sergio@epa.gov";>bosques.sergio@epa.gov</A>.
     For EPA Region 3, contact William Toffel at tel.: (215) 814-5706 or
<A HREF="mailto:toffel.william@epa.gov";>toffel.william@epa.gov</A>.
     For EPA Region 5, contact Brian Bell at tel.: (312) 886-0981 or e-
mail at <A HREF="mailto:bell.brianc@epa.gov";>bell.brianc@epa.gov</A>.
     For EPA Region 6, contact Brent Larsen at tel.: (214) 665-7523 or
e-mail at: <A HREF="mailto:larsen.brent@epa.gov";>larsen.brent@epa.gov</A>.
     For EPA Region 7, contact Mark Matthews at tel.: (913) 551-7635 or
e-mail at: <A HREF="mailto:matthews.mark@epa.gov";>matthews.mark@epa.gov</A>.
     For EPA Region 8, contact Vern Berry at tel.: (303) 312-6234 or e-
mail at: <A HREF="mailto:berry.vern@epa.gov";>berry.vern@epa.gov</A>.
     For EPA Region 9, contact Eugene Bromley at tel.: (415) 972-3510 or
e-mail at <A HREF="mailto:bromley.eugene@epa.gov";>bromley.eugene@epa.gov</A>.
     For EPA Region 10, contact Misha Vakoc at tel.: (206) 553-6650 or
e-mail at <A HREF="mailto:vakoc.misha@epa.gov";>vakoc.misha@epa.gov</A>.

II. Background

A. Statutory and Regulatory History

     Section 405 of the Water Quality Act of 1987 (WQA) added section
402(p) of the Clean Water Act (CWA), which directed the Environmental
Protection Agency (EPA) to develop a phased approach to regulate storm
water discharges under the National Pollutant Discharge Elimination
System (NPDES) program. EPA published a final regulation on the first
phase on this program on November 16, 1990, establishing permit
application requirements for ``storm water discharges associated with
industrial activity.'' EPA defined the term ``storm water discharge
associated with industrial activity'' in a comprehensive manner to
cover a wide variety of

[[Page 78118]]

facilities. Construction activities that disturb at least five acres of
land and have point source discharges to waters of the U.S. are defined
as an ``industrial activity'' per 40 CFR 122.26(b)(14)(x).
     Phase II of the storm water program was published in the Federal
Register on December 8, 1999. Phase II includes sites disturbing
greater that one acre and less than five acres as well as sites less
than one acre of total land area that are part of a larger common plan
of development or sale if the larger common plan will ultimately
disturb equal to or greater than one and less than five acres. Small
construction activity is defined per 40 CFR 122.26(b)(15)(i).
     In developing the Phase II storm water regulations, EPA conducted
analysis of the potential impacts of the regulation on the National
economy and also analyzed impacts on small businesses. These impacts
focused on implementation of sediment and erosion control practices or
best management practices to reduce pollutants commonly associated with
construction storm water discharges. In performing these analyses, EPA
considered affected industrial sectors, including the oil and gas
industry. EPA determined that few, if any, oil and gas exploration
sites would be affected by Phase II and impacts on the accuracy of
Phase II rule cost estimates were unlikely to be significant.
Therefore, EPA did not include oil and gas exploration sites in the
Final Draft of the Economic Analysis of the Phase II Final Rule. Since
January 2002, information has become available indicating that close to
30,000 oil and gas sites may be affected by the Phase II storm water
regulations. In the spirit of Executive Order 13211, which directs EPA
to consider the impact of its actions on energy-related production
activities, the Agency believes it is important to review the economic
analysis of the Phase II rule to determine the impact on the oil and
gas industry. In evaluating the impact, the Agency will work with
states, industry, and other entities to gather and evaluate data on the
development and use of appropriate best management practices for the
oil and gas industry. EPA will also continue to review the scope and
effect of 33 U.S.C. 1342(l)(2), relating to oil and gas exploration
activities, and other provisions of the Clean Water Act. EPA intends in
the very near future to propose to extend the March 10, 2003, permit
authorization deadline for Phase II oil and gas facilities to be
covered by a storm water permit.

B. Summary of Significant Changes From 1998 Construction General Permit

     This permit replaces the previous Construction General Permits
which were issued for a five-year term by various EPA Regions in
February 1998 (63 FR 7858) and July 1998 (63 FR 36490). The
organization and numbering of today's draft CGP has been revised
slightly from the 1998 CGP to more clearly present permittee
responsibilities. In addition, following is a list of significant
changes included in the draft CGP as compared to the February 1998 CGP.
These changes are discussed in more detail in the CGP fact sheet.
1. Change in Permit Areas Covered
i. Additions
     a. Indian Country within the States of Michigan, Wisconsin,
Minnesota, Louisiana, Oklahoma, New Mexico, and Texas,
     b. State of New Mexico,
     c. Discharges in the State of Oklahoma that are not under the
authority of the Oklahoma Department of Environmental Quality,
including activities associated with oil and gas exploration, drilling,
operations, and pipelines (includes SIC codes 1311, 1381, 1382, 1389,
and 5171), and point source discharges associated with agricultural
production, services, and silviculture, and
     d. Discharges in the State of Texas that are not under the
authority of the Texas Commission on Environmental Quality (formerly
TNRCC), including activities associated with the exploration,
development, or production of oil or gas or geothermal resources,
including transportation of crude oil or natural gas by pipeline.
ii. Deletions
     a. State of Maine,
     b. Indian Country within the State of Maine.
     c. State of Arizona.
     2. Small construction activities (those disturbing one to five
acres) added to eligibility provisions.
     3. Uncontaminated excavation dewatering added as an allowable non-
storm water discharge.
     4. Eligibility provisions for discharges threatening water quality
clarified.
     5. Restrictions on and documentation of discharges to waters with
Total Maximum Daily Loads (TMDLs) added.
     6. Eligibility requirements specific to the National Historic
Preservation Act added.
     7. Small construction waiver availability added.
     8. Discharge authorization timeframe changed from 48 hours after
NOI submission to immediately upon submission of a complete and
accurate NOI.
     9. NOI content requirements (and draft revised NOI Form) modified
to include:
     i. Nature of construction project,
     ii. Name of Indian reservation or affiliated Tribe,
     iii. Address of SWPPP location changed from optional to required,
     iv. Receiving water name clarified to indicate MS4 name may be
appropriate response,
     v. Identification of whether site is part of larger common plan and
if site is large or small, and
     vi. National Historic Preservation Act eligibility certification.
     10. Notification of potential waiting periods for permit
authorization in certain areas as necessitated for the protection of
endangered or threatened species added.
     11. Clarification that partial final stabilization is acceptable in
certain instances.
     12. Elimination of the need to estimate runoff coefficient of the
site for pre- and post-construction.
     13. Option for weekly site inspections rather than biweekly
inspections with followup inspections after each rain event added.
     14. Inspection requirements for linear construction projects
clarified.
     15. Procedures for addressing non-attainment of water quality
standards added.
     16. Standard conditions revised consistent with 40 CFR 122.41.
     17. Delegation of signatory authorities for all reports other than
NOIs, can be retained on-site in the SWPPP rather than submitted to
EPA.

C. Summary of Terms and Conditions of Proposed General Permit

1. Discharges Covered
     Operators of large and small construction activities within the
areas listed below may be eligible to obtain coverage under this permit
for allowable storm water and non-storm water discharges:
     Region 1: The Commonwealth of Massachusetts and the State of New
Hampshire; Indian Country in the Commonwealth of Massachusetts and the
States of Rhode Island and Connecticut; and Federal facilities in
Vermont.
     Region 2: The Commonwealth of Puerto Rico and Indian Country in the
State of New York.
     Region 3: District of Columbia; and Federal facilities in the State
of Delaware.

[[Page 78119]]

     Region 5: Indian Country in the States of Michigan, Minnesota, and
Wisconsin.
     Region 6: The State of New Mexico; Indian Country in the States of
Louisiana, Oklahoma, Texas, and New Mexico (except Navajo Reservation
Lands [see Region 9]
and Ute Mountain Reservation Lands (see Region
8)); discharges in the State of Oklahoma that are not under the
authority of the Oklahoma Department of Environmental Quality,
including activities associated with oil and gas exploration, drilling,
operations, and pipelines (includes SIC codes 1311, 1381, 1382, 1389,
and 5171), and point source discharges associated with agricultural
production, services, and silviculture; and discharges in the State of
Texas that are not under the authority of the Texas Commission on
Environmental Quality (formerly the Texas Natural Resource Conservation
Commission), including activities associated with the exploration,
development, or production of oil or gas or geothermal resources,
including transportation of crude oil or natural gas by pipeline.
     Region 7: Indian Country in the States of Iowa, Kansas, and
Nebraska (except Pine Ridge Reservation Lands (see Region 8)).
     Region 8: Federal facilities in Colorado; Indian Country in
Colorado (as well as the portion of the Ute Mountain Reservation
located in New Mexico), Montana, North Dakota (as well as that portion
of the Standing Rock Reservation located in South Dakota and excluding
the portion of the lands within the former boundaries of the Lake
Traverse Reservation, which is covered under the permit for areas of
South Dakota), South Dakota (as well as the portion of the Pine Ridge
Reservation located in Nebraska and the portion of the lands within the
former boundaries of the Lake Traverse Reservation located in North
Dakota and excluding the Standing Rock Reservation which is covered
under the permit for areas of North Dakota), Utah (except Goshute and
Navajo Reservation lands (see Region 9)), and Wyoming.
     Region 9: The Islands of American Samoa and Guam, Johnston Atoll,
Midway/Wake Islands and Commonwealth of the Northern Mariana Islands;
Indian Country in Arizona (as well as Navajo Reservation lands in New
Mexico and Utah), California, and Nevada (as well as the Duck Valley
Reservation in Idaho, the Fort McDermitt Reservation in Oregon, and the
Goshute Reservation in Utah).
     Region 10: The States of Alaska and Idaho; Indian Country in
Alaska, Idaho (except Duck Valley Reservation (see Region 9)),
Washington, and Oregon (except for Fort McDermitt Reservation (see
Region 9)); and Federal facilities in Washington.
2. Limitations on Coverage
     The proposed general permit includes a number of eligibility
restrictions including: post-construction discharges; discharges which
may adversely affect endangered or threatened species and critical
habitat, or historic properties; discharges which may cause or
contribute to exceedances of water quality standards; and discharges
that are inconsistent with any applicable approved total maximum daily
loads (TMDLs). Construction operators that do not meet the eligibility
requirements of the proposed general permit would be required to submit
an individual permit application or seek coverage under any alternate
general permit, if available.
3. Deadlines and Permit Application Process
     To obtain discharge authorization under the proposed general
permit, dischargers would be required to submit a notice of intent
(NOI) requesting discharge authorization. The NOI would be required to
include basic information about the construction project (e.g.,
operator name, site name, and site address) and certification that a
storm water pollution prevention plan (SWPPP) has been prepared for the
site describing the best management practices that the discharger will
implement to control pollutants in the discharges in accordance with
the requirements of the CWA. NOI due dates are as follows:
i. Large Construction (<ls-thn-eq> 5 acres)
     a. Ongoing projects as of the effective date of the permit: Within
90 days of the effective date of this permit (or by July 7, 2003 for
facilities electing to remain covered by the 1998 Region 6 permit until
it expires), unless permittee is eligible to submit a Notice of
Termination (NOT) from coverage under a previous NPDES permit before
the 90th day (or by July 7, 2003 for facilities electing to remain
covered by the 1998 Region 6 permit until it expires), provided that
the NOT is submitted in compliance with the permit requirements.
     b. New projects after the effective date of the permit: Prior to
commencement of construction activities.
ii. Small Construction (1-5 acres)
     a. Ongoing projects as of March 10, 2003: By March 10, 2003.
     b. New projects after the effective date of the permit: Prior to
commencement of construction activities.
4. Storm Water Pollution Prevention Plans
     The proposed general permit would require that all operators
covered by the permit develop and implement a SWPPP. The SWPPP would be
the principal means through which dischargers comply with the CWA's
requirement to control pollutants in their discharges. All SWPPPs would
be required to be developed in accordance with sound engineering
practices and developed specific to the site. These SWPPPs would be
required to be prepared prior to commencement of construction
activities and then updated as appropriate. Specific elements to be
addressed in the SWPPP include:
     i. Pollution Prevention Plan Contents: Site and Activity
Description,
     ii. Pollution Prevention Plan Contents: Controls to Reduce
Pollutants,
     iii. Non Storm Water Discharge Management,
     iv. Maintenance of Controls,
     v. Documentation of Permit Eligibility Related to Endangered
Species,
     vi. Documentation of Permit Eligibility Related to Historic Places,
     vii. Copy of Permit Requirements,
     viii. Applicable State, Tribal, or Local Programs,
     ix. Inspections,
     x. Maintaining an Updated SWPPP,
     xi. Signature, Plan Review and Making Plans Available,
     xii. Management Practices,
     xiii. Documentation of Permit Eligibility Related to Impaired
Waters,
5. Permit Appeal Procedures
     Within 120 days following notice of EPA's final decision for the
general permit under 40 CFR 124.15, any interested person may appeal
the permit in the Federal Court of Appeals in accordance with Section
509(b)(1) of the CWA. Persons affected by a general permit may not
challenge the conditions of a general permit as a right in further
Agency proceedings. They may instead either challenge the general
permit in court, or apply for an individual permit as specified at 40
CFR 122.21 (and authorized at 40 CFR 122.28), and then petition the
Environmental Appeals Board to review any conditions of the individual
permit (40 CFR 124.19 as modified on May 15, 2000, 65 FR 30886).

III. Executive Order 12866

     Under Executive Order 12866 (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order.

[[Page 78120]]

The Order defines ``significant regulatory action'' as one that is
likely to result in a rule that may: (1) Have an annual effect on the
economy of $100 million or more or adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or safety, or State, local, or Tribal
governments or communities; (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; or (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. OMB has exempted review of NPDES general permits
under the terms of Executive Order 12866.

IV. Regulatory Flexibility Act

     The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rule-making requirements under the Administrative
Procedures Act or any other statute unless the agency certifies that
the rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
     Issuance of an NPDES general permit is not subject to rulemaking
requirements, including the requirement for a general notice of
proposed rulemaking, under APA section 553 or any other law, and is
thus not subject to the RFA requirements.
     The APA defines two broad, mutually exclusive categories of agency
action--``rules'' and ``orders.'' Its definition of ``rule''
encompasses ``an agency statement of general or particular
applicability and future effect designed to implement, interpret, or
prescribe law or policy or describing the organization, procedure, or
practice requirements of an agency * * *'' APA section 551(4). Its
definition of ``order'' is residual: ``a final disposition * * * of an
agency in a matter other than rule making but including licensing.''
APA section 551(6) (emphasis added). The APA defines ``license'' to
``include * * * an agency permit * * *'' APA section 551(8). The APA
thus categorizes a permit as an order, which by the APA's definition is
not a rule. Section 553 of the APA establishes ``rule making''
requirements. The APA defines ``rule making'' as ``the agency process
for formulating, amending, or repealing a rule.'' APA section 551(5).
By its terms, then, section 553 applies only to ``rules'' and not also
to ``orders,'' which include permits.

V. Unfunded Mandates Reform Act

     Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their ``regulatory actions'' on State, local, and tribal
governments and the private sector. UMRA uses the term ``regulatory
actions'' to refer to regulations. (See, e.g., UMRA section 201, ``Each
agency shall * * * assess the effects of Federal regulatory actions * *
* (other than to the extent that such regulations incorporate
requirements specifically set forth in law)'' (emphasis added)). UMRA
section 102 defines ``regulation'' by reference to 2 U.S.C. 658 which
in turn defines ``regulation'' and ``rule'' by reference to section
601(2) of the Regulatory Flexibility Act (RFA). That section of the RFA
defines ``rule'' as ``any rule for which the agency publishes a notice
of proposed rulemaking pursuant to section 553(b) of [the
Administrative Procedure Act (APA)], or any other law. * * *''
     As discussed in the RFA section of this notice, NPDES general
permits are not ``rules'' under the APA and thus not subject to the APA
requirement to publish a notice of proposed rulemaking. NPDES general
permits are also not subject to such a requirement under the CWA. While
EPA publishes a notice to solicit public comment on draft general
permits, it does so pursuant to the CWA section 402(a) requirement to
provide ``an opportunity for a hearing.'' Thus, NPDES general permits
are not ``rules'' for RFA or UMRA purposes.

VI. Paperwork Reduction Act

     EPA has reviewed the requirements imposed on regulated facilities
resulting from the proposed construction general permit under the
Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. The information
collection requirements of the construction general permit for large
construction activities have already been approved by the Office of
Management and Budget (OMB) (OMB Control No. 2040-0188) in previous
submissions made for the NPDES permit program under the provisions of
the Clean Water Act. Information collection requirements of the
construction general permit for small construction activities were
submitted to OMB (OMB Control No. 2040-0211) for review and approval
and will be published in a separate Federal Register Notice.
     1. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

     Dated: December 9, 2002.
Linda M. Murphy,
Director, Office of Ecosystem Protection, EPA Region 1.
     2. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

     Dated: December 6, 2002.
Walter E. Mugdan,
Director, Division of Environmental Planning and Protection, EPA Region
2.
     3. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

     Dated: December 10, 2002.
Victoria Binetti,
Acting Director, Water Protection Division, EPA Region 3.
     4. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

     Dated: December 5, 2002.
Mary P. Tyson,
Acting Director, Water Division, EPA Region 5.
     5. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

     Dated: December 11, 2002.
Miguel I. Flores,
Director, Water Quality Protection Division, EPA Region 6.
     6. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

     Dated: December 9, 2002.
Leo Alderman,
Director, Water, Wetlands & Pesticides Division, EPA Region 7.
     7. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

     Dated: December 11, 2002.
Kerrigan G. Clough,
Assistant Regional Administrator, Office of Partnerships and Regulatory
Assistance, EPA Region 8.
     8. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

     Dated: December 5, 2002.
John Kemmerer,
Acting Director, Water Division, EPA Region 9.
     9. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

     Dated: December 11, 2002.
Randall F. Smith,
Director, Office of Water, EPA Region 10.
[FR Doc. 02-32134 Filed 12-19-02; 8:45 am]
BILLING CODE 6560-50-P


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PO Box 39,  East Lansing, MI  48826-0039
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