Federal Register / Vol. 74, No. 37 / Thursday, February 26, 2009 / Notices 8789 

Docket No. File date Presenter or requester 

3. P–2210–169 ............................................................................................................................................. 2–9–09 T. Rogers 2. 

1Summary of Telephone conference. 

2 Record of e-mail exchange. 

Kimberly D. Bose, 

Secretary. 

[FR Doc. E9–4082 Filed 2–25–09; 8:45 am] 

BILLING CODE 6717–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–8772–1; EPA–HQ–OW–2005–0007] 

Final National Pollutant Discharge 

Elimination System (NPDES) General 

Permit for Stormwater Discharges 

From Industrial Activities 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of final permit issuance 

of the 2008 Multi-Sector General Permit 

for Alaska, Idaho, federal facilities in 

Washington, and Indian Country in the 

states of Idaho, Oregon and Washington. 

SUMMARY: EPA previously announced 

the issuance of the NPDES general 

permit for stormwater discharges from 

industrial activity, also referred to as the 

Multi-Sector General Permit (MSGP), in 

the Federal Register of September 29, 

2008 (73 FR 56572). Today’s action 

provides notice of final MSGP issuance 

for the states of Alaska and Idaho; for 

federal facilities in Washington; and for 

Indian Country in the states of Idaho, 

Oregon and Washington. 

DATES: Today’s action is effective on 

February 26, 2009. This effective date is 

necessary to provide dischargers with 

the immediate opportunity to comply 

with Clean Water Act requirements in 

light of the expiration of the previous 

version of the MSGP on October 30, 

2005. In accordance with 40 CFR Part 

23, this permit shall be considered 

issued for the purpose of judicial review 

on March 12, 2009. Under section 

509(b) of the Clean Water Act, judicial 

review of this general permit can be had 

by filing a petition for review in the 

United States Court of Appeals with 120 

days after the permit is considered 

issued for purposes of judicial review. 

Under section 509(b)(2) of the Clean 

Water Act, the requirements in this 

permit may not be challenged later in 

civil or criminal proceedings to enforce 

these requirements. In addition, this 

permit may not be challenged in other 

agency proceedings. Deadlines for 

submittal of Notices of Intent from 

facilities located in the areas listed 

above are provided as part of this action. 

FOR FURTHER INFORMATION CONTACT: For 

information about the issuance of the 

MSGP in Alaska; Idaho; for federal 

facilities in Washington; and in Indian 

Country in Idaho, Oregon and 

Washington, contact Misha Vakoc, EPA 

Region 10, Office of Water and 

Watersheds at (206) 553–6650 or 

vakoc.misha@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does This Action Apply to Me? 

If a discharger chooses to seek 

coverage under this MSGP to be 

authorized to discharge stormwater from 

industrial activities, the MSGP provides 

specific requirements for preventing 

contamination of stormwater discharges 

from industrial facilities listed in the 

sectors shown below: 

Sector A—Timber Products 

Sector B—Paper and Allied Products 

Manufacturing 

Sector C—Chemical and Allied Products 

Manufacturing 

Sector D—Asphalt Paving and Roofing 

Materials Manufactures and Lubricant 

Manufacturers 

Sector E—Glass, Clay, Cement, 

Concrete, and Gypsum Product 

Manufacturing 

Sector F—Primary Metals 

Sector G—Metal Mining (Ore Mining 

and Dressing) 

Sector H—Coal Mines and Coal MiningRelated Facilities 

Sector I—Oil and Gas Extraction and 

Refining 

Sector J—Mineral Mining and Dressing 

Sector K—Hazardous Waste Treatment 

Storage or Disposal 

Sector L—Landfills and Land 

Application Sites 

Sector M—Automobile Salvage Yards 

Sector N—Scrap Recycling Facilities 

Sector O—Steam Electric Generating 

Facilities 

Sector P—Land Transportation 

Sector Q—Water Transportation 

Sector R—Ship and Boat Building or 

Repairing Yards 

Sector S—Air Transportation Facilities 

Sector T—Treatment Works 

Sector U—Food and Kindred Products 

Sector V—Textile Mills, Apparel, and 

other Fabric Products Manufacturing 

Sector W—Furniture and Fixtures 

Sector X—Printing and Publishing 

Sector Y—Rubber, Miscellaneous Plastic 

Products, and Miscellaneous 

Manufacturing Industries 

Sector Z—Leather Tanning and 

Finishing 

Sector AA—Fabricated Metal Products 

Sector AB—Transportation Equipment, 

Industrial or Commercial Machinery 

Sector AC—Electronic, Electrical, 

Photographic and Optical Goods 

Sector AD—Reserved for Facilities Not 

Covered Under Other Sectors and 

Designated by the Director 

B. 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–2005–0007. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Water Docket in the EPA Docket 

Center, (EPA/DC) EPA West, Room 

3334, 1301 Constitution Ave., NW., 

Washington, DC 20460. Publicly 

available docket materials are available 

in hard copy at the EPA Docket Center 

Public Reading Room, 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 

http://www.epa.gov/fedrgstr/. 

Electronic versions of this final permit 

and fact sheet are available at EPA’s 

stormwater Web site http:// 

www.epa.gov/npdes/stormwater/msgp. 

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 http://www.regulations.gov/

fdmspublic/component/main to 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 

8790 Federal Register / Vol. 74, No. 37 / Thursday, February 26, 2009 / Notices 

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.B.1. 

II. Background 

EPA proposed the MSGP for public 

comment on December 1, 2005 (70 FR 

72116). On September 29, 2008 (73 FR 

56572), EPA announced the availability 

of the MSGP for industrial facilities 

located in the States of Massachusetts, 

New Hampshire, New Mexico; the 

Commonwealth of Puerto Rico; the 

District of Columbia; the Territories of 

Johnson Atoll, American Samoa, Guam, 

the Commonwealth of Northern Mariana 

Islands, Midway and Wake Islands; 

Indian Country in Alaska, Arizona, 

Connecticut, Massachusetts, Louisiana, 

Michigan, Minnesota, Nevada, New 

Mexico, Oklahoma, Texas, Wisconsin, 

Rhode Island; for certain facilities in the 

states of Oklahoma and Texas not on 

Indian Country lands; and for Federal 

facilities located in Delaware and 

Vermont. 

EPA Region 10 did not issue the final 

MSGP for the States of Alaska and 

Idaho; for Federal facilities in 

Washington; and for Indian Country in 

the States of Idaho, Oregon and 

Washington because it had not yet 

received the Clean Water Act 401 

certifications. Now that EPA Region 10 

has received the required Clean Water 

Act 401 certifications, it is issuing the 

final MSGP, as described more fully 

below, in the States of Alaska and 

Idaho; for Federal facilities in 

Washington; and for Indian Country in 

the States of Idaho, Oregon and 

Washington. 

The MSGP provides coverage for 29 

sectors of industrial point source 

discharges that occur in areas not 

covered by an approved State NPDES 

program. EPA summarized the MSGP 

permit conditions, as well as changes 

from the previous version of the MSGP, 

in the September 29, 2008, Federal 

Register notice. 

Since September 2008, EPA received 

final certifications under the Clean 

Water Act Section 401 from the States 

of Alaska and Idaho; the Lummi Tribe, 

the Confederated Tribe of the Umatilla 

Indians; and the Puyallup Tribe of 

Indians. Accordingly, permit coverage 

under the MSGP is now available to 

dischargers in the following areas: 

• The State of Alaska, except Indian 

Country lands; 

• The State of Idaho, except Indian 

Country lands; 

• Indian Country lands within the 

State of Idaho, except Duck Valley 

Reservation lands; 

• Indian Country lands within the 

State of Oregon, except Fort McDermitt 

Reservation lands; 

• Indian Country lands within the 

State of Washington; and 

• Federal facilities in the State of 

Washington, except those located on 

Indian Country lands. 

Pursuant to CWA section 401(d), the 

limitations and requirements contained 

in these certifications are now 

conditions of the MSGP and are 

included in Part 9.10 of the permit. In 

addition, EPA has specified the 

deadline for submittal of Notices of 

Intent from dischargers in these areas in 

Table 9.10–1. 

The MSGP effective date is February 

26, 2009. Operators of facilities 

discharging within the areas listed 

above must submit their Notice of Intent 

to EPA no later than May 27, 2009. The 

permit and the authorization to 

discharge will expire at midnight on 

September 29, 2013. As previously 

noted, the complete text of the updated 

MSGP can be obtained through EPA’s 

Web site at http://www.epa.gov/npdes/ 

stormwater/msgp. 

Permit Appeal Procedures 

In accordance with 40 CFR part 23, 

this permit shall be considered issued 

for the purpose of judicial review on 

March 12, 2009. 

III. Compliance With the Regulatory 

Flexibility Act for General Permits 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure 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. 

The legal question of whether a 

general permit (as opposed to an 

individual permit) qualifies as a ‘‘rule’’ 

or as an ‘‘adjudication’’ under the 

Administrative Procedure Act (APA) 

has been the subject of periodic 

litigation. In a recent case, the court 

held that the CWA Section 404 

Nationwide general permit before the 

court did qualify as a ‘‘rule’’ and 

therefore that the issuance of the general 

permit needed to comply with the 

applicable legal requirements for the 

issuance of a ‘‘rule.’’ National Ass’n of 

Home Builders v. U.S. Army Corps of 

Engineers, 417 F.3d 1272, 1284–85 (DC 

Cir. 2005) (Army Corps general permits 

under Section 404 of the Clean Water 

Act are rules under the APA and the 

Regulatory Flexibility Act; ‘‘Each NWP 

[nationwide permit] easily fits within 

the APA’s definition of a ‘rule.’ * * * 

As such, each NWP constitutes a rule 

* * *’’). 

As EPA stated in 1998, ‘‘the Agency 

recognizes that the question of the 

applicability of the APA, and thus the 

RFA, to the issuance of a general permit 

is a difficult one, given the fact that a 

large number of dischargers may choose 

to use the general permit.’’ 63 FR 36489, 

36497 (July 6, 1998). At that time, EPA 

‘‘reviewed its previous NPDES general 

permitting actions and related 

statements in the Federal Register or 

elsewhere,’’ and stated that ‘‘[t]his 

review suggests that the Agency has 

generally treated NPDES general permits 

effectively as rules, though at times it 

has given contrary indications as to 

whether these actions are rules or 

permits.’’ Id. at 36496. Based on EPA’s 

further legal analysis of the issue, the 

Agency ‘‘concluded, as set forth in the 

proposal, that NPDES general permits 

are permits [i.e., adjudications] under 

the APA and thus not subject to APA 

rulemaking requirements or the RFA.’’ 

Id. Accordingly, the Agency stated that 

‘‘the APA’s rulemaking requirements are 

inapplicable to issuance of such 

permits,’’ and thus ‘‘NPDES permitting 

is not subject to the requirement to 

publish a general notice of proposed 

rulemaking under the APA or any other 

law * * * [and] it is not subject to the 

RFA.’’ Id. at 36497. 

However, the Agency went on to 

explain that, even though EPA had 

concluded that it was not legally 

required to do so, the Agency would 

voluntarily perform the RFA’s smallentity impact analysis. Id. EPA 

explained the strong public interest in 

the Agency following the RFA’s 

requirements on a voluntary basis: 

‘‘[The notice and comment] process also 

provides an opportunity for EPA to 

consider the potential impact of general 

permit terms on small entities and how 

to craft the permit to avoid any undue 

burden on small entities.’’ Id. 

Accordingly, with respect to the NPDES 

permit that EPA was addressing in that 

Federal Register notice, EPA stated that 

‘‘the Agency has considered and 

addressed the potential impact of the 

Federal Register / Vol. 74, No. 37 / Thursday, February 26, 2009 / Notices 8791 

1EPA’s current guidance, entitled Final Guidance 

for EPA Rulewriters: Regulatory Flexibility Act as 

Amended by the Small Business Regulatory 

Enforcement and Fairness Act, was issued in 

November 2006 and is available on EPA’s Web site: 

http://www.epa.gov/sbrefa/documents/

rfafinalguidance06.pdf. After considering the 

Guidance and the purpose of CWA general permits, 

EPA concludes that general permits affecting less 

than 100 small entities do not have a significant 

economic impact on a substantial number of small 

entities. 

general permit on small entities in a 

manner that would meet the 

requirements of the RFA if it applied.’’ 

Id. 

Subsequent to EPA’s conclusion in 

1998 that general permits are 

adjudications, rather than rules, as 

noted above, the DC Circuit recently 

held that Nationwide general permits 

under section 404 are ‘‘rules’’ rather 

than ‘‘adjudications.’’ Thus, this legal 

question remains ‘‘a difficult one’’ 

(supra). However, EPA continues to 

believe that there is a strong public 

policy interest in EPA applying the 

RFA’s framework and requirements to 

the Agency’s evaluation and 

consideration of the nature and extent of 

any economic impacts that a CWA 

general permit could have on small 

entities (e.g., small businesses). In this 

regard, EPA believes that the Agency’s 

evaluation of the potential economic 

impact that a general permit would have 

on small entities, consistent with the 

RFA framework discussed below, is 

relevant to, and an essential component 

of, the Agency’s assessment of whether 

a CWA general permit would place 

requirements on dischargers that are 

appropriate and reasonable. 

Furthermore, EPA believes that the 

RFA’s framework and requirements 

provide the Agency with the best 

approach for the Agency’s evaluation of 

the economic impact of general permits 

on small entities. While using the RFA 

framework to inform its assessment of 

whether permit requirements are 

appropriate and reasonable, EPA will 

also continue to ensure that all permits 

satisfy the requirements of the Clean 

Water Act. 

Accordingly, EPA hereby commits 

that the Agency will operate in 

accordance with the RFA’s framework 

and requirements during the Agency’s 

issuance of CWA general permits (in 

other words, the Agency commits that it 

will apply the RFA in its issuance of 

general permits as if those permits do 

qualify as ‘‘rules’’ that are subject to the 

RFA). In satisfaction of this 

commitment, during the course of this 

MSGP permitting proceeding, the 

Agency conducted the analysis and 

made the appropriate determinations 

that are called for by the RFA. In 

addition, and in satisfaction of the 

Agency’s commitment, EPA will apply 

the RFA’s framework and requirements 

in any future MSGP proceeding as well 

as in the Agency’s issuance of other 

NPDES general permits. EPA anticipates 

that for most general permits the Agency 

will be able to conclude that there is not 

a significant economic impact on a 

substantial number of small entities. In 

such cases, the requirements of the RFA 

framework are fulfilled by including a 

statement to this effect in the permit fact 

sheet, along with a statement providing 

the factual basis for the conclusion. A 

quantitative analysis of impacts would 

only be required for permits that may 

affect a substantial number of small 

entities, consistent with EPA guidance 

regarding RFA certification.1

IV. Quantitative Analysis of Economic 

Impacts of the MSGP 

EPA has determined, in consideration 

of the discussion in Section IV above, 

that the issuance of the MSGP 

potentially could affect a substantial 

number of small entities. Therefore, to 

determine what, if any, economic 

impact this permit may have on small 

businesses, EPA conducted an economic 

assessment of this general permit. Based 

on this assessment, EPA concludes that 

this permit will not have a significant 

economic impact on a substantial 

number of businesses, including small 

businesses. The estimated increased 

compliance cost per permittee ranges 

from a low of $8.37 per year to a high 

of $28.27 per year. All cost estimates are 

presented in 2005 dollars. As a 

percentage of annual sales, the expected 

incremental burden of these estimated 

costs is small. The cost-to-sales ratios 

are small across all MSGP sectors, with 

the largest impacts observed in Sectors 

I (0.003 percent) and P (0.003 percent). 

These cost estimates reflect the 

incremental monitoring, documentation 

and reporting costs imposed by this 

permit, relative to the comparable costs 

for compliance with MSGP 2000. They 

do not include the costs of additional 

control measures that may be required 

as a result of more rigorous 

documentation and reporting 

requirements (e.g., for corrective action). 

EPA recognizes that these costs may be 

significant for some facilities, but 

believes that relatively few facilities will 

have significantly increased costs 

relative to MSGP 2000 because in most 

cases the underlying standards of 

control have not changed. EPA was 

unable to quantify these costs because 

EPA is not able to predict what sitespecific additional control measures 

may be necessary in these limited cases. 

Based on EPA’s analysis, the Agency 

concludes that this permit will not 

result in a significant economic impact 

on a substantial number of small 

businesses. The factual basis for this 

conclusion is included in the economic 

analysis for the permit, available as part 

of the docket for this permit, and 

summarized above. 

Authority: Clean Water Act, 33 U.S.C. 1251 

et seq. 

Dated: January 29, 2009. 

Michael A. Bussell, 

Director, Office of Water and Watersheds, 

EPA Region 10. 

[FR Doc. E9–4152 Filed 2–25–09; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–HQ–OAR–2007–1196; FRL–8772–3] 

Recent Postings of Broadly Applicable 

Alternative Test Methods 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of availability. 

SUMMARY: This notice announces the 

broadly applicable alternative test 

method approval decisions the EPA has 

made under and in support of New 

Source Performance Standards (NSPS) 

and the National Emission Standards for 

Hazardous Air Pollutants (NESHAP) in 

2008. 

FOR FURTHER INFORMATION CONTACT: An 

electronic copy of each alternative test 

method approval document is available 

on EPA’s Web site at http:// 

www.epa.gov/ttn/emc/approalt.html. 

For questions about this notice, contact 

Jason M. DeWees, Air Quality 

Assessment Division, Office of Air 

Quality Planning and Standards (E143– 

02), Environmental Protection Agency, 

Research Triangle Park, NC 27711; 

telephone number: 919–541–9724; fax 

number: 919–541–0516; e-mail address: 

dewees.jason@epa.gov. For technical 

questions about individual alternative 

test method decisions, refer to the 

contact person identified in the 

individual approval documents. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does This Notice Apply to Me? 

This notice will be of interest to 

entities regulated under 40 CFR parts 

60, 61, and 63, and State, local, Tribal 

agencies, and EPA Regional Offices 

responsible for implementation and 

enforcement of regulations under 40 

CFR parts 60, 61, and 63.