[Federal Register Volume 78, Number 29 (Tuesday, February 12, 2013)]
[Notices]
[Pages 9908-9910]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-03055]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-13-006 and 9779-7 ]
Notice of Availability of the Draft Issuance of the Small
Municipal Separate Storm Sewer System NPDES General Permit--New
Hampshire
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of Availability of Draft NPDES General Permits.
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SUMMARY: The Director of the Office of Ecosystem Protection,
Environmental Protection Agency-Region 1 (EPA), is issuing this Notice
of Availability of a draft National Pollutant Discharge Elimination
System (NPDES) general permit for discharges from small Municipal
Separate Storm Sewer Systems (MS4s) to certain waters of the State of
New Hampshire. The draft NPDES general permit establishes Notice of
Intent (NOI) requirements, prohibitions, and management practices for
stormwater discharges from small MS4s. A prior Notice of Availability
of a draft general permit was issued by EPA in December 2008. EPA has
substantially modified the draft general permit and is issuing a new
draft general permit pursuant to 40 CFR 124.6.
DATES: Comments must be received on or before April 15, 2013. The
general permit shall be effective on the date specified in the Federal
Register publication of the Notice of Availability of the final general
permit. The final general permit will expire five years from the
effective date.
Public Hearing Information: EPA will hold a public hearing in
accordance with 40 CFR 124.12 and will provide interested parties with
the opportunity to provide written and/or oral comments for the
official draft permit record. The public hearing will be held March 14,
2013 from 2:00pm to 5:00pm at the following location: NH Department of
Environmental Services Pease Field Office--Pease International
Tradeport--222 International Drive, Suite 175--Portsmouth, New
Hampshire 03801.
ADDRESSES: Submit comments by one of the following methods:
Email: [email protected]
Mail: Newton Tedder, US EPA--Region 1, 5 Post Office
Square--Suite 100, Mail Code--OEP06-4, Boston, MA 02109-3912.
No facsimiles (faxes) will be accepted.
The draft permit is based on an administrative record available for
public review at EPA-Region 1, Office of Ecosystem Protection, 5 Post
Office Square--Suite 100, Boston, Massachusetts 02109-3912. A
reasonable fee may be charged for copying requests. The fact sheet for
the draft permit sets forth principal facts and the significant
factual, legal, methodological and policy questions considered in the
development of the draft permit and is available upon request. A brief
summary is provided as SUPPLEMENTARY INFORMATION below.
FOR FURTHER INFORMATION CONTACT: Additional information concerning the
draft permit may be obtained between the hours of 9:00 a.m. and 5:00
p.m. Monday through Friday excluding legal holidays from: Newton
Tedder, Office of Ecosystem Protection, Environmental Protection
Agency, 5 Post Office Square--Suite 100, Boston, MA 02109-3912;
telephone: 617-918-1038; email: [email protected]
SUPPLEMENTARY INFORMATION:
Background of Proposed Permit
EPA is proposing to reissue three draft NPDES general permits for
the discharge of stormwater from small MS4s to certain waters within
the State of New Hampshire. The three permits are:
NHR041000--Traditional cities and towns
NHR042000--Non-traditional state, federal, county and other publicly
owned systems
NHR043000--Non-traditional transportation systems
While these are technically distinct permits, for convenience we
have grouped them together in a single document and have provided a
single fact sheet for all three of them, and this document refers to
the draft general ``permit'' in the singular. The draft general permit,
appendices, and fact sheet are available at: http://www.epa.gov/region1/npdes/stormwater.
The conditions in the draft permit are established pursuant to
Clean Water Act (CWA) section 402(p)(3)(iii) to ensure that pollutant
discharges from small MS4s are reduced to the Maximum Extent
Practicable (MEP), protect water quality, and satisfy the appropriate
requirements of the CWA. The regulations at 40 CFR 122.26(b)(16) define
a small municipal separate storm sewer system as ``all separate storm
sewers that are:
(1) Owned or operated by the United States, a State, city, town,
borough, county, parish, district, association, or other public body
(created by or pursuant to State law) having jurisdiction over disposal
of sewage, industrial wastes, stormwater, or other wastes, including
special districts under State law such as a sewer district, flood
control district or drainage district, or similar entity, or an Indian
tribe or an authorized Indian tribal organization, or a designated and
approved management agency under section 208 of the CWA that discharges
to waters of the United States.
(2) Not defined as `large' or `medium' municipal separate storm
sewer systems pursuant to paragraphs (b)(4) or (b)(7) or designated
under paragraph (a)(1)(v) of this section [40 CFR 122.26].
(3) This term includes systems similar to separate storm sewer
systems in municipalities such as systems at military bases, large
hospital or prison complexes, and highways or other thoroughfares. The
term does not include separate storm sewers in very discrete areas,
such as individual buildings.''
The draft general permit sets forth the requirements for the small
MS4 to ``reduce the discharge of pollutants to the maximum extent
practicable, including management practices, control techniques, and
system, design
[[Page 9909]]
and engineering methods'' (See section 402(p)(3)(B)(iii) of the CWA).
MEP is the statutory standard that establishes the level of pollutant
reductions that MS4 operators must achieve. EPA believes that
implementation of best management practices (BMPs) designed to control
storm water runoff from the MS4 is generally the most appropriate
approach for reducing pollutants to satisfy the MEP standard. Pursuant
to 40 CFR 122.44(k), the draft permit contains BMPs, including
development and implementation of a comprehensive stormwater management
program (SWMP) as the mechanism to achieve the required pollutant
reductions.
Section 402(p)(3)(B)(iii) of CWA also authorizes EPA to include in
an MS4 permit ``such other provisions as [EPA] determine[s] appropriate
for control of [hellip] pollutants.'' This provision forms a basis for
imposing water quality-based effluent limitations (WQBELs), consistent
with the authority in Section 301(b)(1)(C) of the CWA. See Defenders of
Wildlife v. Browner, 191 F.3d 1159, 1166-67 (9th Cir. 1999); 64 FR
68722, 68753, 68788 (Dec. 8, 1999). Accordingly, the draft permit
contains the water quality-based effluent limitations, expressed in
terms of BMPs, which EPA has determined are necessary and appropriate
under the CWA.
EPA issued a final general permit to address stormwater discharges
from small MS4s on May 1, 2003. The 2003 general permit required small
MS4s to develop and implement a SWMP designed to control pollutants to
the maximum extent practicable and protect water quality. This draft
permit builds on the requirements of the previous general permit.
EPA views the MEP standard in the CWA as an iterative process. MEP
should continually adapt to current conditions and BMP effectiveness.
Compliance with the requirements of this general permit will meet the
MEP standard. The iterative process of MEP consists of a municipality
developing a program consistent with specific permit requirements,
implementing the program, evaluating the effectiveness of the BMPs
included as part of the program, then revising those parts of the
program that are not effective at controlling pollutants, then
implementing the revisions, and evaluating again. The changes contained
in the draft general permit reflect the iterative process of MEP.
Accordingly, the draft general permit contains more specific tasks and
details than the 2003 general permit.
EPA initially proposed a draft permit in December 2008. Based on
comments and information gathered while developing responses, EPA has
modified the initial draft general permit and is issuing a new draft
permit pursuant to 40 CFR 124.6. The changes to the draft general
permit include, but are not limited to: provisions addressing
discharges to impaired waters without a Total Maximum Daily Load,
including requirements related to discharges to the Great Bay watershed
and chlorides-impaired waters; provisions related to Total Maximum
Daily Loads that have been approved since December 2008; illicit
discharge detection elimination and monitoring provisions. The draft
general permit has also been revised to provide for coverage to MS4s
that became subject to NPDES permit requirements with the issuance of
updated urbanized area delineations based on the results of the 2010
Census. The 2008 draft general permit also addressed certain areas
outside of New Hampshire. This revised draft general permit applies
only to New Hampshire
EPA is specifically seeking public comment on the specific permit
Parts listed above, but will accept comment on all permit provisions.
Please note that the new Draft Permit completely supersedes the 2008
draft permit, and EPA is providing an entirely new comment period under
40 CFR 124.10. Consequently, all persons who believe any condition of
the new Draft Permit is inappropriate must raise all reasonably
ascertainable issues and submit all reasonably available arguments
supporting their position during this public comment period, which
includes the public hearing.
Summary of Permit Conditions
Obtaining Authorization
In order for a small MS4 to obtain authorization to discharge, it
must submit a complete and accurate NOI containing the information in
Appendix E of the draft general permit. The NOI must be submitted
within 90 days of the effective date of the final permit. The effective
date of the final permit will be specified in the Federal Register
publication of the Notice of Availability of the final permit. A small
MS4 must meet the eligibility requirements of the general permit found
in Part 1.2 and Part 1.9 prior to submission of its NOI. A small MS4
will be authorized to discharge under the permit upon receipt of
written notice from EPA following a public notice of the submitted NOI.
EPA will authorize the discharge, request additional information, or
require the small MS4 to apply for an alternative permit or an
individual permit.
Water Quality Based Effluent Limitations
The draft permit includes provisions to ensure that discharges do
not cause or contribute to exceedances of water quality standards. The
provisions in Parts 2.1 and 2.2 of the general permit constitute the
water quality-based effluent limitations of the permit. The purpose of
these parts of the permit is to establish the board inclusion of water
quality-based effluent limitations for those discharges requiring
additional controls in order to achieve water quality standards and
other water quality related objectives, consistent with 40 CFR
122.44(d). The non-numeric effluent limitation requirements of this
permit are expressed in the form of control measures and BMPs (see Part
2.3 of the general permit).
Non-Numeric Effluent Limitations
When EPA has not promulgated effluent limitations for a category of
discharges, or if an operator is discharging a pollutant not covered by
an effluent limitation guideline, effluent limitations may be based on
the best professional judgment (BPJ) of the agency or permit writer.
The BPJ limits in the general permit are in the form of non-numeric
control measures, commonly referred to as best management practices
(BMPs). EPA has interpreted the CWA to allow BMPs to take the place of
numeric effluent limitations under certain circumstances. 40 CFR
122.44(k) provides that permits may include BMPs to control or abate
the discharge of pollutants when: ``(1) [a]uthorized under section
304(e) of the CWA for the control of toxic pollutants and hazardous
substances form ancillary industrial activities; (2) [a]uthorized under
section 402(p) of the CWA for the control of stormwater discharges; (3)
[n]umeric effluent limitations are infeasible; or (4) [t]he practices
are reasonable to achieve effluent limitations and standards or to
carry out the purposes and intent of the CWA.'' The permit regulates
stormwater discharges using BMPs. Due to the variability associated
with stormwater, EPA believes the use of BMPs is the most appropriate
method to regulate discharges of stormwater from municipal systems in
accordance with the above referenced regulation.
The small MS4s are required to implement a SWMP that includes the
following control measures: public education and outreach; public
participation; illicit discharge detection and elimination;
construction stormwater management; stormwater
[[Page 9910]]
management in new development and redevelopment; and good housekeeping
in municipal operations. Implementation of the SWMP involves the
identification of BMPs and measurable goals for BMPs. The draft permit
identifies an objective for each control measure.
EPA is soliciting public comments on the issues discussed in this
notice or on other relevant matters. The public comment process and the
public hearing will be conducted in accordance with 40 CFR 124, EPA's
Procedures for Decisionmaking. EPA will consider and respond to all
significant comments before taking final action. All persons, including
applicants, who believe any condition of the draft permit is
inappropriate must raise all reasonably ascertainable issues and submit
all reasonably available arguments supporting their position by the
close of the public comment period, either by submitting written
comments to the EPA New England Regional Office listed in the ADDRESSES
section of this Federal Register, or by submitting written or oral
comments at the public hearing. Any supporting materials which are
submitted shall be included in full and may not be incorporated by
reference, unless they are already part of the administrative record in
this proceeding, or consist of State or Federal statutes and
regulations, EPA documents of general applicability, or other generally
available reference materials.
Other Legal Requirements
A. Endangered Species Act
The provisions related to the ESA have not been changed from those
in the 2008 draft permit. However, the Atlantic Sturgeon (Acipenser
oxyrinchus) has been added to the list of species of concern for this
draft permit. EPA requested concurrence from the appropriate Federal
services (U.S. Fish and Wildlife Service and National Marine Fisheries
Service) in connection with the 2008 draft and has renewed this request
for the new Draft Permit.
B. Executive Order 12866
EPA has determined that this general permit is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
C. Paperwork Reduction Act
The information collection requirements of this permit were
previously approved by the Office of Management and Budget (OMB) under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.,
and assigned OMB control number 2040-0004.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,
requires that EPA prepare a regulatory flexibility analysis for rules
subject to the requirements of 5 U.S.C. 553(b) that have a significant
impact on a substantial number of small entities. However, general
NPDES permits are not ``rules'' subject to the requirements of 5 U.S.C.
553(b) and are therefore not subject to the RFA.
E. Unfunded Mandates Reform Act
Section 201 of the Unfunded Mandates Reform Act (UMRA), Public Law
104-4, generally requires Federal agencies to assess the effects of
their ``regulatory actions'' (defined to be the same as ``rules''
subject to the RFA) on tribal, state, and local governments and the
private sector. However, general NPDES permits are not ``rules''
subject to the requirements of 5 U.S.C. 553(b) and are therefore not
subject to the RFA or the UMRA.
Authority: This action is being taken under the Clean Water Act,
33 U.S.C. 1251 et seq.
Dated: February 5, 2013.
H. Curtis Spalding,
Regional Administrator, Region 1.
[FR Doc. 2013-03055 Filed 2-11-13; 8:45 am]
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