[Federal Register Volume 74, Number 37 (Thursday, February 26, 2009)]
[Notices]
[Pages 8789-8791]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-4152]


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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.

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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 
<a href="/cdn-cgi/l/email-protection#0a7c6b61656924676379626b4a6f7a6b246d657c"><span class="__cf_email__" data-cfemail="7d0b1c16121e5310140e151c3d180d1c531a120b">[email protected]</span></a>.

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 Mining-Related 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

[[Page 8790]]

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:
    <bullet> The State of Alaska, except Indian Country lands;
    <bullet> The State of Idaho, except Indian Country lands;
    <bullet> Indian Country lands within the State of Idaho, except 
Duck Valley Reservation lands;
    <bullet> Indian Country lands within the State of Oregon, except 
Fort McDermitt Reservation lands;
    <bullet> Indian Country lands within the State of Washington; and
    <bullet> 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 small-entity 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

[[Page 8791]]

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\
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    \1\ EPA'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.
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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 site-specific 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


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