December 18, 2015

MEMORANDUM

To: File

From: Greg Schaner, Attorney Adviser, U.S. EPA

Re: Summary of Changes Made to EPA’s Propos ed Municipal Separate Storm Sewer System

General Permit Remand Rule

This memorandum includes a summary of changes made to EPA’s proposed Municipal Separate Storm Sewer System (MS4) General Permit Remand Rule in response to comments received during Inter-Agency review. The pr oposed rule was submitted to the Office of Management & Budget (OMB) on October 15, 2 015. OMB closed its review on December 12,

2015.

The following includes a part-by-part summ ary of noteworthy changes made to the proposed rule. This list does not include change s initiated by EPA during Inter-Agency review to improve clarity or consiste ncy, or to correct errors.

Section II.B

 Included the following edits: Like the Phase I rule, the Phase II rule requires regulated small MS4s to develop and implement SW MPs. 40 CFR 122.34(a) requires that SWMPs be designed to reduce pollutants discharged from the MS4 “to the maximum extent practicable (MEP), to protect water quality, and to satisf y the appropriate water quality requirements of the Clean Water Act,” and requires that the SWMPs include a minimum

of six program elements called “minimum control measures.”

 Included the following edits: EPA anticipat ed that under the first two or three rounds of issuing small MS4 permits permit cycles , whether individual permits or general permits, BMP-based SWMPs implementing the six mini mum control measures would, if properly implemented, “be sufficiently stringent to pr otect water quality, in cluding water quality standards, so that additional, more stringen t and/or more prescriptive water quality based

effluent limitations will be unneces sary.” (64 FR 68753, December 8, 1999).

Section V.C

 Included the following edits: EPA clarifies that if , upon promulgation of the final rule, a state is already implementing an approach that is consistent with the final rule EPA would not expect that the permitting authority would need to make any changes to its current approach. Similarly, it is EPA’s intention that permitting authorities that only issue individual permits to small MS4s (e.g., EPA Region 10 in Idaho, Delaware, Michigan, and Oregon) would not need to make any changes because the process for issuing individual permits already encompa sses the necessary permitting attributes foundPage 2 of 4 missing in the Phase II regulations by th e Ninth Circuit (i.e., permitting authority determination, public notice, and opp ortunity to reque st a hearing).

Section VI.B

 Included description of regul atory changes that are envi sioned for the Procedural Approach and State Choice Approach: The following regulatory modifications are envisioned if the procedural approach is selected for the final rule:

 Include additional language indicating that to the extent that the permitting authority chooses to rely on the MS4 operator to de scribe in its NOI the BMPs, measurable goals, schedules, and other activities in its SWMP that it plans to implement to reduce pollutant discharges to the MEP, to pr otect water quality, and to satisfy the appropriate water quality requirements of the CWA, the permitting authority will need to incorporate these as enforceable elements of the permit in accordance with the procedures for public no tice, the opportunity to request a hearing, and permitting authority final determination in 40 CFR part 124.

 With respect to determining the appropriate 40 CFR part 124 procedures to follow,

one model that EPA could utilize in crafti ng applicable rule language for procedural aspects of Option 3 is the regulatory pr ocedures in 40 CFR 122.23(h) for CAFO general permits. While the CAFO and MS4 programs differ fundamentally from one another in many ways, there are some aspect s of the CAFO general permit procedures

that could be modified in a manner that would make them suitable to small MS4 general permits. Thus, based on some of the key elements of the CAFO general permit procedures in 40 CFR 122.23(h), EPA is considering including the following provisions in revised 40 CFR 122.33(b )(1) as subparagra phs (i) – (iii):

- At a minimum, the operator must include in the NOI the BMPs that it proposes to implement to comply with the permit, the measurable goals for each BMP, the person or persons responsible for implementing the SWMP, and any additional information required in the NOI by the general permit.

- The Director must review the NOI to ensure that it includes adequate information to determine if the pr oposed BMPs, timelines, and any other actions are adequate to reduce the discha rge of pollutants from the MS4 to the maximum extent practicable, to protect water quality, and to satisfy the appropriate water quality requirements of the Clean Water Act. When the

Director finds that additional informati on is necessary to complete the NOI or clarify, modify, or supplement previous ly submitted material, the Director may request such additional information from the MS4 operator.

- If the Director makes a preliminary de termination that the NOI contains the required information and that the pr oposed BMPs, schedules, and any other actions necessary to reduce the discharg e of pollutants from the MS4 to the maximum extent practicable, to protect water quality, and to satisfy the appropriate water quality requirements of the Clean Water Act, the permitting authority must notify the public of its proposal to authorize the MS4 to discharge under the gene ral permit and, consistent with 40 CFR 124.10, make available for public review and commen t and opportunity for public hearing the NOI, and the specific BMPs, milest ones, and schedules from the NOI thatPage 3 of 4 the Director proposes to be incorpor ated into the permit as enforceable requirements. The process for subm itting public comments and hearing requests, and the hearing process if a hearing is granted, must follow the procedures applicable to draft permits in 40 CFR 124.11-13. The permitting authority must respond to significant comments received during the comment period, as provided in 40 CFR 124.17, and, if necessary revise the proposed BMPs and/or timelines to be included as terms of the permit..

- When the Director authorizes covera ge for the MS4 to discharge under the general permit, the specific elements iden tified in the NOI are incorporated as terms and conditions of the general permit for that MS4. The permitting authority must, consistent with 40 CFR 124.15, notify the MS4 operator and inform the public that cove rage has been authorized and of the elements from the NOI that are incorporated as term s and conditions of the general permit applicable to the MS4.

 To accompany the above regulatory changes, EPA is also considering specifying what specific information the MS4 will need to provide as part of the NOI in order to obtain coverage under a general permit that w ill use a procedural approach, such as the approach described above. The MS4 woul d need to provide the same information as is required for an application for an individual permit under proposed 40 CFR 122.33(b)(2)(ii). This includes general b ackground information as specified in 122.21(f) as well as the information curren tly required by 40 CFR 122.34(d), and any other information requested by the permitting authority.

 If the final rule includes Option 2 or a llows for a hybrid approach under Option 3,

authorized states would need to revise their approved programs to include the option(s) chosen by the permitting authority and to establish or reference the public notice and comment, hearing request, and ot her procedures nece ssary to implement the chosen option(s).

 Added the following sentence for clarification: For both the Procedural Approach and State Choice Approach (see Section VI.C be low), the Agency chose to describe the regulatory changes that would accompany thes e options if promulgated as opposed to providing line-by-line rule te xt changes as it has for the Traditional General Permit Approach. In EPA’s view, presenting the ru le language in this way will aid in the public’s review of the three different options as compared to pres enting three different

sets of line- by-line changes.

Section VI.C

 Added the following clarification: If EPA adopt s this option as part of the final rule, the following rule changes would be necessary:

 Adopt the rule changes proposed in today’ s notice associated with the Traditional General Permit Approach, as modified pursuant to public comment; and

 Adopt the rule changes described in the discussion above under Option 2.

 Added the following request for comment: EPA also requests comment on whether under Option 3, EPA should consider establis hing which permit requirements mustPage 4 of 4 be developed using the Traditional Genera l Permit Approach (Option 1), and which may be developed using the Proc edural Approach (Option 2). For instance, EPA is interested in finding out whether there is support for requiring permitting authorities to use Option 1 to develop permit conditions im plementing the minimum control measures in 40 CFR 122.34(b), while providing the permitti ng authority with the choice of whether to use an Option 2 approach to establish any more stringent effluent limitations, such as those based on an approved TMDL. Using this approach, the general permit would define the specific actions, performance re quirements, and implementation schedules considered necessary to reduce pollutant disc harges to the MEP, to protect water quality, and to satisfy the water quality requirements of the CWA. However, this approach would provide the permitting authority the additional flexibility to allow the MS4 to propose in its NOI the specific components of a TMDL implementation plan in order to comply with permit requirements based on applicable wastel oad allocation(s). To ensure that the specific actions and timelines of the TMDL plan are properly incorporated as elements of the permit, the permitting authority would then be required to review and approve the small MS4’s proposed plan using the proce ss required by the Procedural Approach (Option 2). Additionally, with respect to this co ncept of specifying which aspects of the small MS4 regulations must be incorp orated into permits using the Option 1 approach, while allowing some permit condi tions to be developed using the Option 2 approach, EPA requests comment on wh ich permit requirements should be required to be established using Option 1 and which should be given the flexibility to be established using Option 2.