17950 Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 122 and 124

[FRL–5182–8]

RIN 2040–AC60

Amendment to Requirements for

National Pollutant Discharge

Elimination System (NPDES) Permits

for Storm Water Discharges Under

Section 402(p)(6) of the Clean Water

Act

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: Today, EPA is promulgating

changes to its National Pollutant

Discharge Elimination System (NPDES)

storm water permit application

regulations under the Clean Water Act

(CWA) to establish a sequential

application process for all phase II

storm water discharges. (Phase II storm

water discharges include all discharges

composed entirely of storm water,

except those specifically classified as

phase I discharges. Phase I discharges

include discharges issued a permit

before February 4, 1987; discharges

associated with industrial activity;

discharges from a municipal separate

storm sewer system serving a

population of 100,000 or more; and

discharges that EPA or an NPDES State/

Indian Tribe determine to be

contributing to a violation of a water

quality standard or a significant

contributor of pollutants to the waters of

the United States.) Application

deadlines are in two tiers. This action

will provide the NPDES permitting

authority (either a State/Indian Tribe or

EPA) flexibility to target those phase II

dischargers that are contributing to a

water quality impairment or are a

significant contributor of pollutants for

permitting within the next six years. All

other phase II dischargers are required

to apply for a permit only after six years,

and only if the phase II regulatory

program in place at that time requires

such applications.

EPA has also initiated a process by

inviting its partners who are

stakeholders in this matter to assist in

the development of additional phase II

rules, which will be finalized by March

1, 1999. These rules will determine the

nature and extent of requirements, if

any, that will apply to the various types

of phase II facilities. Both the changes

to the rules issued today as well as the

development of the comprehensive

phase II program through an

inclusionary process is a response by

EPA to the direction of the President on

February 21, 1995, regarding regulatory

reform.

DATES: This final rule will be effective

on August 2, 1995 unless significant

adverse or critical comments that would

cause the Agency to change its position

are received by June 6, 1995. In

accordance with 40 CFR 23.2, this rule

shall be considered final for purposes of

judicial review at 1 p.m. (Eastern time)

on August 2, 1995.

ADDRESSES: Written comments on this

rule may be submitted using one of two

different methods. See SUPPLEMENTARY

INFORMATION for information on

submitting comments.

FOR FURTHER INFORMATION CONTACT:

Nancy Cunningham, Office of

Wastewater Management, Permits

Division (4203), Environmental

Protection Agency, 401 M Street, SW,

Washington, DC 20460, (202) 260–9535.

SUPPLEMENTARY INFORMATION:

Submission of Comments

First, comments may be sent to the

Comment Clerk, Water Docket (Storm

Water Phase II Direct Final Rule), MC–

4101, Environmental Protection Agency,

401 M Street, SW, Washington DC

20460. It is requested that an original

and one copy of the comments be

provided to this address. Comments will

be considered to be timely if they are

postmarked by June 6, 1995.

Commenters who would like

acknowledgment of receipt of their

comments should include a selfaddressed, stamped envelope. No

facsimiles (faxes) will be accepted.

In the alternative, EPA will accept

comments electronically; EPA is

experimenting with electronic

commenting. Comments should be

addressed to the following Internet

address: SWPH2–DFR@epamail.epa.gov.

Electronic comments must be submitted

as an ASCII file avoiding the use of

special characters and any form of

encryption. Electronic comments will be

transferred into a paper version for the

official record. EPA will attempt to

clarify electronic comments if there is

an apparent error in transmission.

Comments provided electronically will

be considered timely if they are

submitted electronically by 11:59 p.m.

(Eastern time) June 6, 1995. Since this

is still experimental, commenters may

want to submit both electronic

comments and duplicate paper

comments. This document has also been

placed on the Internet for public review

and downloading at the following

location: gopher.epa.gov.

A copy of the supporting information

for this rule is available for review at

EPA’s Water Docket, Room L–102, 401

M Street, SW, Washington, DC 20460.

For access to the docket materials, call

(202) 260–3027 between 9 a.m. and 3:30

p.m. (Eastern time) for an appointment.

I. Overview of Today’s Action

Today, EPA is promulgating changes

to its NPDES storm water permit

application regulations under the CWA

to establish a commonsense approach

which will provide for a sequential

application process for all phase II

storm water discharges. Application

deadlines are in two tiers. To obtain real

environmental results earlier, the

highest priority is being assigned to

those phase II dischargers that the

NPDES permitting authority (either a

State/Indian Tribe or EPA) determines

are contributing to a water quality

impairment or are a significant

contributor of pollutants. These

dischargers will be required to apply for

a permit to the permitting authority

within 180 days of receipt of notice,

unless permission for a later date is

granted. This process will allow the

permitting authority to focus their

current efforts on those facilities that

will produce the greatest environmental

benefit earlier. All phase II facilities that

are not designated shall apply to the

permitting authority no later than six

years from the effective date of this

regulation, and only if the phase II

regulatory program in place at that time

requires such applications. EPA is also

establishing application requirements

for these discharges, as well as making

other conforming changes to other

portions of its NPDES regulations.

Today’s action is the first step in

EPA’s approach to develop a

comprehensive phase II program under

Clean Water Act (CWA) section

402(p)(6) and is consistent with

President Clinton’s February 21, 1995,

direction on regulatory reform as well as

the Office of Water’s ‘‘National Program

Agenda for the Future.’’ EPA cannot

deal with all storm water issues in

today’s action. Some issues raised by

stakeholders, such as funding for storm

water best management practices and

certain issues with regard to compliance

with water quality standards, can only

be resolved by legislative action. In fact,

EPA supported certain statutory changes

or clarifications to the storm water

program last year in President Clinton’s

Clean Water Initiative. Some issues,

such as the nature and extent of

requirements, if any, that will apply to

the various types of phase II sources,

can be resolved through rulemaking.

EPA has initiated a process of inviting

its partners who are stakeholders to

participate in development of
Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules and Regulations 17951

expectations and requirements for more

comprehensive phase II rules, as well as

revisions and refinements to phase I.

EPA expects stakeholders will consider

the lessons learned from the phase I

storm water program in relooking at the

phase I application process and

requirements. EPA intends to propose

those rules by September 1, 1997, and

finalize those rules by March 1, 1999. If

the CWA is amended in a manner to

deal with these storm water issues, EPA

will move to expeditiously implement

the statutory changes. Today’s

rulemaking will promote the public

interest by relieving dischargers of the

requirement to apply for permits until

(1) a phase II program is in place that

can be defined by regulation or changes

to the statute or (2) the permitting

authority makes an affirmative finding

of the need for a permit to protect water

quality.

II. Background

A. Phase I of the Storm Water Program

The Clean Water Act

The 1972 amendments to the Federal

Water Pollution Control Act (referred to

as the Clean Water Act) prohibit the

discharge of any pollutant to navigable

waters from a point source unless the

discharge is authorized by a NPDES

permit. While water pollution control

measures in the United States for

industrial process wastewater and

municipal sewage have had major

success, urban and agricultural runoff

continue to contribute to our Nation’s

remaining water quality problems.

EPA’s Report to Congress under section

305(b) entitled The National Water

Quality Inventory, 1992 Report to

Congress, provides a national

assessment of surface water impacts

associated with runoff from various land

uses. The latest report concludes that

storm water runoff from a number of

diffuse sources, including municipal

separate storm sewers and urban runoff

is a leading cause of water quality

impairment cited by States.

Section 402(p) was added to the CWA

in 1987 to require implementation of a

comprehensive two-phased approach

for addressing storm water discharges

under the NPDES program. Section

402(p)(1) currently prohibits EPA or

NPDES States (including Indian Tribes

authorized to operate the NPDES

program) from requiring permits for

discharges composed entirely of storm

water (storm water discharges) until

October 1, 1994, except for the

following five classes of phase I storm

water discharges specifically listed

under section 402(p)(2):

(a) discharges issued a permit before

February 4, 1987,

(b) discharges associated with

industrial activity,

(c) discharges from a municipal

separate storm sewer system serving a

population of 250,000 or more,

(d) discharges from a municipal

separate storm sewer system serving a

population of 100,000 or more but less

than 250,000,

(e) discharges that EPA or an NPDES

State [or Tribe authorized to be treated

as a State for this purpose] determine to

be contributing to a violation of a water

quality standard or a significant

contributor of pollutants to the waters of

the United States. (EPA issued guidance

on August 8, 1990 that included a

discussion of designation authority.)

Under CWA section 402(l)(2), permits

are not required for certain dischargers,

specifically, storm water runoff from

mining operations or oil and gas

facilities * * * if the storm water

discharge is not contaminated by

contact with * * * any overburden, raw

material, intermediate product, finished

product, byproduct, or waste product

located on the site of such operations.

CWA section 502(14) excludes

agricultural storm water discharges from

the definition of point source, thereby

excluding these discharges from the

NPDES permit requirement.

Section 402(p)(3) established

requirements for permits issued under

phase I of the storm water program

while section 402(p)(4) established

statutory deadlines for the initial steps

in implementing the phase I program.

Phase I Regulatory Program

EPA promulgated regulations defining

application requirements in 40 CFR

122.26 for phase I storm water

discharges on November 16, 1990 (55

FR 47990). Permits are required for large

(over 250,000 population served) and

medium (100,000–250,000 population

served) municipal separate storm sewer

systems (MS4); storm water discharges

issued a permit before February 4, 1987;

storm water discharges ‘‘associated with

industrial activity,’’ which are identified

in the regulations by 11 specific

categories; and those dischargers

designated by the NPDES State or EPA.

EPA amended the November 1990

application regulations in various

respects in 1992 in response to a court

ruling in NRDC v. EPA, 966 F.2d 1292

(9th Cir., 1992) in which EPA

established generally applicable permit

issuance deadlines. In addition, EPA

noted that the Agency was not requiring

permit applications from the two

categories of storm water discharges

associated with industrial activity

(construction activities disturbing less

than 5 acres and light industry without

exposure to storm water) until

application requirements were

established by regulation. (57 FR 60444,

December 18, 1992.)

Phase I Implementation Activities

The efforts of EPA and the authorized

NPDES States to implement the phase I

storm water program have focused on

(1) issuing general permits for industrial

storm water discharges, (2) reviewing

group applications for industrial storm

water dischargers, (3) publishing a

proposed multi-sector general permits

for storm water discharges from 29

industrial sectors, (4) reviewing

applications and issuing permits for

municipal separate storm sewer

systems, and (5) conducting outreach

activities.

B. Phase II of the Storm Water Program.

Water Quality Act of 1987 and Later

Amendments

The 1987 amendments established a

process for EPA to evaluate potential

phase II sources and designate sources

for regulation to protect water quality.

Section 402(p)(5) requires EPA, in

consultation with the States, to conduct

two studies of storm water discharges

other than phase I sources (i.e., potential

phase II sources). The first study, under

section 402(p)(5) (A) and (B) (to be

completed by October 1, 1988), was to

identify storm water discharges not

covered under phase I and determine, to

the maximum extent practicable, the

nature and extent of pollutants in such

discharges. The second study, under

section 402(p)(5)(C) (to be completed by

October 1, 1989), was to establish

procedures and methods to control

storm water discharges to the extent

necessary to mitigate impacts on water

quality.

Section 402(p)(6) of the CWA requires

EPA, in consultation with State and

local officials and based on the findings

of the reports required under section

402(p)(5), to issue regulations that

designate additional storm water

discharges to be controlled to protect

water quality under phase II of the

program and to establish a

comprehensive program to regulate such

designated sources. The program shall,

at a minimum, establish priorities,

requirements for State storm water

management programs, and expeditious

deadlines. The program may include

performance standards, guidelines,

guidance, and management practices

and treatment requirements, as

appropriate. These regulations were to

be issued by October 1, 1993. EPA did
17952 Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules and Regulations

not issue these regulations by the

statutory deadline. Today’s action is a

common sense approach which defines

and establishes application submittal

requirements for phase II of the NPDES

program for storm water. As noted

below, EPA will be revising these

requirements over the next several years

in partnership with its numerous

stakeholders.

September 9, 1992 Notice — Phase II

Issues

On September 9, 1992, EPA published

a notice requesting information and

public comment on the phase II program

(57 FR 41344). The notice identified

three sets of issues associated with

developing phase II regulations,

including (1) how sources should be

identified, (2) types of control strategies

for these sources, and (3) deadlines for

implementing the requirements. The

notice presented a range of alternatives

under each issue in an attempt to

illustrate, and obtain input on, the full

range of potential approaches for a

phase II strategy. EPA received more

than 130 comments on the notice from

municipalities, trade groups or

industries, State or Federal agencies,

and other miscellaneous sources. No

comments were received from

environmental groups.

Rensselaerville Phase II Effort

In early 1993, the Rensselaerville

Institute and EPA held public and

expert meetings to assist in developing

and analyzing options for identifying

phase II sources and controls. One of the

options most favored by the various

groups participating included use of a

tiered approach that would provide for

EPA selection of high priority sources

for control by NPDES permits and State

selection of other sources for control

under a State program other than the

NPDES program.

Storm Water Reports to Congress

EPA is transmitting to Congress

concurrently with this action, its first

report required under sections 402(p)(5)

(A) and (B). This report is contained in

the record for this rule. This report was

broadly circulated in November 1993 by

the Agency to the States, trade groups,

environmental groups, Congressional

staff, other interested parties, and all

people who requested a copy. EPA

received comments from various States

and other groups and made changes, as

appropriate, to respond to those

comments.

Section 402(p)(5)(C) requires a second

study of storm water discharges for the

purpose of establishing procedures and

methods to control storm water

discharges that were not addressed as

part of the first phase of the NPDES

storm water program to the extent

necessary to mitigate impacts on water

quality. President Clinton’s Clean Water

Initiative, which was released on

February 1, 1994, contains the Agency’s

recommendations for phase II and is

considered by EPA to be the second

Report to Congress. EPA has included

these materials in its report that is being

submitted to Congress.

President Clinton’s Clean Water

Initiative

President Clinton’s Clean Water

Initiative addresses a number of issues

associated with NPDES requirements for

storm water discharges, including (1)

establishing a phased approach for

compliance of discharges from

municipal separate storm sewer systems

with water quality standards with a

focus on controlling discharges from

growth and development areas, (2)

clarifying that the Maximum Extent

Practical standard should be applied in

a site specific, flexible manner taking

into account cost considerations as well

as water quality effects, (3) providing for

an exemption from the storm water

program for industrial facilities with no

activities or no significant materials

exposed to storm water, (4) providing

for deadline extensions for phase II of

the storm water program, (5) providing

for a targeted approach for phase II

storm water program requirements,

including regulation of storm water

from industrial facilities by

municipalities, and (6) providing for

control of discharges from inactive and

abandoned mines located on Federal

lands in a more targeted, flexible

manner.

Several bills to reauthorize the CWA

which include amendments to NPDES

requirements for storm water were

introduced in the House and Senate in

the 103rd Congress; however,

substantive changes to the CWA were

not made. Provisions contained in the

President’s Initiative, as well as the

other bills, will be considered by the

Agency in its comprehensive

rulemaking involving stakeholders, to

the extent the Agency is authorized to

make changes discussed there under

existing law.

The Agency recognizes that there may

be action in the 104th Congress to

change storm water requirements.

Stakeholders have raised some issues

that go well beyond the scope of EPA’s

regulatory authority and can only be

addressed by legislation. Certain parties

have requested that the Agency delay

issuance of this regulation until

Congress acts. EPA is obligated to

implement the current law and is taking

this action to provide certainty to phase

II dischargers as to when their permit

applications are due if relief is not

provided through regulatory or

legislative action. EPA is willing to

work with affected parties on statutory

issues and, if the law is changed, will

move to expeditiously implement the

changes.

October 1, 1994, Deadline for Permits

under Phase II

On October 18, 1994, EPA issued

guidance interpreting the October 1,

1994, statutory deadline pertaining to

phase II storm water dischargers. The

memorandum recognized that EPA had

not issued regulations implementing the

requirements of section 402(p)(6) before

October 1, 1994; and the Agency and

approved NPDES States are unable to

waive the statutory requirement that

point source discharges of pollutants to

waters of the United States need an

NPDES permit. The memorandum also

recognized that at the time of the

guidance, EPA had completed a draft

study identifying potential point source

discharges of storm water for regulatory

consideration under the requirements of

section 402(p)(6) (as noted, EPA is

transmitting the Reports to Congress);

and the Agency had initiated a process

to develop implementing regulations (of

which today’s action is a part). The

guidance also referred to the general

application requirements for the NPDES

program and the Agency’s January 12,

1994, storm water enforcement strategy.

EPA Instituting Federal Advisory

Committee Effort

The Agency has established a Federal

Advisory Committee Act advisory

committee to provide advice on various

wet weather issues. EPA will work with

a subcommittee of this advisory

committee to form a partnership to

specifically address phase II storm water

issues. This action will complement the

specific regulatory action EPA is taking

today. Both actions are part of the

Agency’s response to the President’s

direction on regulatory reform. EPA

wants to develop a common sense

approach to allow EPA and the States/

Indian Tribes to manage for results in

developing a phase II storm water

program that will provide ecosystem

protection. EPA believes there is

considerable latitude and flexibility

within the existing language contained

in section 402(p)(6) in establishing the

scope and extent of the phase II program

and the nature of the controls used.

Some questions EPA will advance build

upon the input the Agency has received

earlier on phase II, including questions
Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules and Regulations 17953

addressing (1) the scope, mechanisms

and timing of phase II, (2) how EPA can

work more effectively with the varying

interests to provide outreach and

technical assistance for phase II, and (3)

consideration of lessons learned from

phase I. EPA would be receptive to

including in the inclusionary process

other issues that have developed broadbased support; these issues may include

research, cost-effective solutions and

expedited implementation. EPA is in

the early stages of development of the

specifics of the phase II program, which

can and will include revisions and

refinements to phase I, including

relooking at the phase I application

process and requirements. EPA

recognizes that many of the

municipalities and industrial facilities

that are subject to the phase I

requirements believe there is a need to

make major changes to phase I.

EPA is committed to conducting this

phase II process, including

improvements to limited portions of

phase I, in an inclusionary manner,

inviting representatives of affected

stakeholders ‘‘to the table’’ to discuss

their respective interests.

Today’s regulatory action is being

taken as a common sense approach to

provide a framework under existing law

for these actions to be undertaken in an

orderly fashion, as well as certainty

regarding the status of phase II

discharges. This approach will allow the

permitting authority to manage for

results by providing the flexibility to

call certain phase II dischargers into the

program based upon a finding of water

quality impact.

III. Today’s Action

Regulation Changes

Today, EPA is promulgating changes

to its NPDES storm water permit

application regulations to establish a

sequential application process for all

phase II storm water discharges.

Application deadlines are in two tiers.

To obtain real environmental results

earlier, the highest priority is being

assigned to those phase II dischargers

that the NPDES permitting authority

(either a State/Indian Tribe or EPA)

determines are contributing to a water

quality impairment or are a significant

contributor of pollutants. These

dischargers will be required to apply for

a permit within 180 days of receipt of

notice from the permitting authority,

unless permission for a later date is

granted. All other phase II facilities will

be required to apply to the permitting

authority no later than six years from

the effective date of this regulation if the

phase II regulatory program in place at

that time requires such applications.

EPA is also establishing application

requirements for these discharges, as

well as making other conforming

changes to other portions of its NPDES

regulations. The specifics of the changes

follow.

First, to codify the already existing

statutory requirement upon the

expiration of the moratorium for phase

II storm water discharges, EPA is adding

40 CFR 122.26(a)(9) to bring into the

NPDES program, as of October 1, 1994,

discharges composed entirely of storm

water that are not otherwise already

required by the phase I regulations to

obtain a permit. EPA considers the

portions of the two phase I categories

that were remanded by the court in

NRDC v. EPA to be covered by these

phase II requirements, as are the

facilities owned by municipalities that

were otherwise excluded from phase I

by the Intermodal Surface

Transportation Efficiency Act of 1991

(Transportation Act). These phase II

storm water dischargers will be required

to apply for a permit according to the

application requirements in new

§ 122.26(g). This provision continues to

recognize the applicability of statutory

NPDES exemptions provided by CWA

sections 402(l) and 502(14).

Second, EPA is adding 40 CFR

122.26(g), which will contain the

regulatory requirements for discharges

composed entirely of storm water under

section 402(p)(6). Any operator of a

point source required to obtain a permit

under § 122.26(a)(9) shall submit an

application in accordance with the

following requirements.

Section 122.26(g)(1) contains the

application deadlines. If a phase II

discharger complies with these

application deadlines, the facility will

not be subject to enforcement action for

discharge without a permit or for failure

to submit a permit application. First, if

the permitting authority (the regulations

use the term ‘‘Director’’ which means

either the NPDES State/Indian Tribe

Director or EPA Regional Administrator,

or authorized representative) determines

and notifies the discharger that a

discharge contributes to a violation of a

water quality standard or is a significant

contributor of pollutants to waters of the

United States, the operator shall apply

for a permit to the permitting authority

within 180 days of receipt of notice,

unless permission for a later date is

granted (see 40 CFR 124.52(c)). This

provision will allow the NPDES

permitting authority to manage for

environmental results by providing the

flexibility to bring certain phase II

sources within the NPDES program at

this time, as determined necessary by

the State/Indian Tribe or EPA. This

determination can be done on a

watershed or class basis where the

permitting authority determines there is

a significant impact or contribution. In

addition, the NPDES permitting

authority may find the information

contained in the Storm Water Reports to

Congress useful in determining the

location and nature of such impacts.

The August 9, 1990, guidance EPA

issued on designation authority may be

useful in making this determination.

The 180 day time period provided for

submission of an application is

consistent with the time period

provided for other situations in the

NPDES program where a facility is

asked to submit an application (40 CFR

122.21(c)(1) and (2)) and the time period

generally provided for applications for

permit renewal (40 CFR 122.21(d)). EPA

recognizes that this time period is

longer than that provided by existing

regulations for those phase I storm water

dischargers designated into the program

(40 CFR 122.26(e)(5)). EPA is

establishing this longer time period to

provide an opportunity for the phase II

discharger to communicate with the

permitting authority about necessary

information, as well as to collect and

submit the application information.

All other phase II facilities shall apply

to the State/ Indian Tribe or EPA Region

no later than six years from the effective

date of this regulation. EPA may change

this application deadline for at least

certain categories of dischargers in the

future as part of the rulemaking process

involving its various partners dealing

with the scope, nature and extent to the

phase II program. However, if changes

are not made, all phase II storm water

dischargers will have to submit

applications by August 2, 2001.

Section 122.26(g)(2) contains

provisions for application requirements

for phase II discharges. At this time, the

existing phase I individual industrial

application requirements in

§ 122.26(c)(1) or application

requirements for municipal separate

storm sewer discharges contained in

§ 122.26(d) will be the requirements for

phase II discharges, unless otherwise

modified by the permitting authority. As

noted earlier, EPA will be relooking at

the application requirements as part of

the advisory committee on wet weather

issues.

EPA is also specifically providing for

and encouraging the use of general

permits for phase II discharges and

would require submission of a notice of

intent to be covered by the general

permit, consistent with the current

requirements of 40 CFR 122.28(b)(2) for

phase I storm water discharges. EPA and
17954 Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules and Regulations

the authorized States have effectively

and efficiently used general permits for

phase I storm water discharges and EPA

believes general permits also will be an

effective mechanism to use in phase II,

when NPDES permits are required.

Group applications for phase II

discharges are not provided for because

the general permit process will be

available to almost all phase II

discharges.

In developing phase II permits, the

permitting authority may apply the

requirements contained in section

402(p)(3), which are the requirements

for phase I permits, on a case-by-case

basis at this time using best professional

judgment.

EPA is also making several

conforming changes to other portions of

40 CFR 122.26. First, EPA is changing

the date for the permit moratorium

contained in § 122.26(a)(1) to October 1,

1994, to reflect the change in this date

provided by the Water Resources

Development Act of 1992. Second, EPA

is amending the title to § 122.26(e) to

read ‘‘Application deadlines under

paragraph (a)(1)’’ to make clear that

these are phase I requirements and

application deadlines, as interpreted by

EPA. Third, EPA is amending

§ 122.26(e)(1)(ii) which are the permit

application requirements for those

municipally owned facilities for whom

application deadlines were postponed

by the Transportation Act to reflect the

fact that these are now phase II

facilities. (Section 1068(c) of the

Transportation Act amended the CWA

to provide that EPA shall not require

any municipality with a population of

less than 100,000 to apply for or obtain

a permit for any storm water discharge

associated with industrial activity other

than an airport, power plant, or

uncontrolled sanitary landfill owned or

operated by such municipalities before

October 1, 1992.) Because EPA is not

making available the group application

process in phase II, similar changes are

not being made to § 122.26(e)(2).

EPA is also making changes to other

applicable NPDES regulatory

provisions. EPA is modifying the

requirements of 40 CFR 122.21(c)(1) to

clarify that new phase II storm water

discharges do not have to submit a

permit application until six years after

the effective date of this regulation, or

earlier if designated by the permitting

authority. EPA is making conforming

changes to 40 CFR 124.52(c) to clarify

the application of these provisions to

both phase I and phase II storm water

discharges.

Basis of Regulations

Today’s action is the first step of

EPA’s approach to develop a

comprehensive phase II program under

section 402(p)(6), and is consistent with

President Clinton’s February 21, 1995,

direction on regulatory reform and the

Office of Water’s December 30, 1994,

‘‘National Water Program Agenda for the

Future.’’ EPA has initiated an

inclusionary process involving its

partners to develop more

comprehensive phase II rules; EPA

intends to propose those rules by

September 1, 1997, and finalize those

rules by March 1, 1999. In the

comprehensive phase II rulemaking,

EPA will consider input from all

stakeholders, as well as the input that

has already been provided to the

Agency on the phase II September 1992

notice and the 1993 Rensselaerville

Institute phase II effort discussed earlier

in this notice. EPA will also consider

the information in the Storm Water

Reports to Congress, and the

recommendations in President Clinton’s

Clean Water Initiative. Finally, EPA will

implement any statutory changes that

are enacted during program

development. Today’s action is based on

recommendations in those documents to

the extent they envision an orderly,

tiered process for regulation of storm

water, allowing the NPDES permitting

authority to manage for results at this

time. EPA is considering making other

changes to improve its operation of the

phase I storm water program in the

comprehensive phase II rulemaking

action, including revising phase I

municipal application requirements.

The regulation issued today fulfills, in

part, the requirements contained in

section 402(p)(6) of the CWA. It is being

issued by EPA today after consultation

with State, local officials, Indian Tribes,

and parts of the regulated and

environmental community. The

regulation, which is the first of a

sequential process, is consistent with

the information contained in the Storm

Water Reports to Congress and the

President’s Initiative as it is providing

the framework of a tiered

implementation of phase II

requirements, allowing the NPDES

permitting authority current flexibility

to manage for results. The application

requirements allow the NPDES

permitting authority to bring within the

phase II program at this time those

phase II discharges impacting water

quality or who are a significant

contributor of pollutants and, if EPA

does not take action to change its

regulations, will require a permit

application from all phase II storm

water discharges in 6 years.

The regulations also establish a

comprehensive program containing

current permit application

requirements. The permitting authority

will be able to establish appropriate

permit requirements on a case-by-case

basis at this time. This first portion of

the phase II program establishes

priorities and deadlines for permit

applications, which, as currently

structured, will be a part of the NPDES

program. These requirements and

changes to 40 CFR 122.26 and

conforming changes to other NPDES

requirements in part 122 are required

parts of State/Tribal NPDES programs

(see 40 CFR 123.25). The initial portion

of the phase II program which is being

established today does not contain a

comprehensive set of performance

standards, guidelines, guidance,

management practices, and treatment

requirements. These conditions can be

established by the permitting authority

on a case-by-case basis upon permit

issuance to designated phase II

discharges. Finally, these conditions

may be further defined by EPA when it

revises the phase II program regulations

as described above.

Today’s action adopts a tiered

approach for selection of high priority

sources to be controlled by NPDES

permits, which was the lead option

presented for public comment in the

September 1992 notice, and one of the

options most favored by the various

groups participating in the effort

conducted in early 1993 by the

Rensselaerville Institute and EPA, as

well as the Storm Water Reports to

Congress and the President’s Clean

Water Initiative. In its rulemaking effort,

EPA believes there will be discussion

with its partners of other approaches

that will provide flexibility to the States

to deal with sources that are not of as

high a priority using other frameworks

and approaches.

In the September 1992 phase II notice,

EPA invited comment on various issues

regarding phase II of the storm water

program, including the appropriate

deadlines for implementing phase II

requirements. The comments EPA

received on this issue generally

recommended implementation of phase

II in stages and reiterated the need for

time to prepare regulations and to

conduct outreach to implement the

program, as well as the need to wait and

study the results of implementation of

phase I of the program. The actions EPA

is taking today are consistent with these

comments.
Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules and Regulations 17955

Supporting Documentation

A. 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 review by the Office of

Management and Budget (OMB) and the

requirements of the Executive Order.

The Order defines ‘‘significant

regulatory action’’ as one that is likely

to lead to a rule that may:

(1) Have an annual effect on the

economy of $100 million or more, or

adversely and materially affecting 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;

(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.

EPA has determined that this

rulemaking significantly reduces the

current regulatory burden imposed on

phase II facilities. This rule was

submitted to OMB for review.

B. Executive Order 12875

Under Executive Order 12875,

entitled ‘‘Enhancing the

Intergovernmental Partnership’’, issued

by the President on October 26, 1993,

the Agency is required to develop an

effective process to allow elected

officials and other representatives of

State and Tribal governments to provide

meaningful and timely input in the

development of regulatory proposals.

EPA fully supports this objective and

has initiated a consultation process with

both States and Tribes which will be

continued through public comment

period on these actions.

Specifically, EPA has discussed this

action with the representatives of the

States, locals governments, the Agency’s

American Indian Environmental Office

(AIEO), and parts of the regulated

community.

The reaction of the States is positive.

The States and the Association of State

and Interstate Water Pollution Control

Administrators (ASIWPCA) support the

approach that is being taken under

existing law; the States and ASIWPCA

also support concurrent changes to the

law. ASIWPCA has submitted a letter to

the Agency dated March 3, 1995, which

is included in the record for this matter.

EPA has responded to many of

ASIWPCA’s comments in this preamble.

The reaction of the municipalities is

that they prefer a statutory change now

to clarify the issue once and for all.

Municipalities’ representatives

(National Association of Counties,

National League of Cities, U.S.

Conference of Mayors, and the National

Association of Flood and Stormwater

Management Agencies) have raised

many issues to the Agency and have

submitted a letter dated February 16,

1995, to the Agency which is contained

in the record for this matter. The

municipalities believe that it is

inappropriate for EPA to act now when

Congress may act on this matter, that the

action taken by EPA is not in

conformance with the law, and that EPA

did not consult with local officials on

this matter. EPA has responded to many

of the municipalities’ concerns

including the legal basis of its action

and potential changes to the statute in

this preamble. EPA did consult with

various representatives of local

governments early in the development

of this regulation as well as more

comprehensively in February.

The reaction of EPA’s AIEO is

positive; the Office of Water will work

through the AIEO to provide for a Tribal

representative to participate in the

inclusionary process.

EPA believes that it has developed an

effective process to obtain input from

State, Tribal and local governments

before issuance of this rule, as well as

receiving comments on the direct final

rule and accompanying proposed

rulemaking, and has met the

consultation requirements for States,

federally recognized Tribes and

localities under the terms of Executive

Order 12875.

C. Paperwork Reduction Act

The Paperwork Reduction Act, 44

U.S.C. 3501 et seq., is intended to

minimize the reporting and recordkeeping burden on the regulated

community, as well as to minimize the

cost of Federal information collection

and dissemination. In general, the Act

requires that information requests and

record-keeping requirements affecting

ten or more non-Federal respondents be

approved by the Office of Management

and Budget.

EPA’s existing information collection

request (ICR) entitled ‘‘Application for

NPDES Discharge Permit and Sewage

Sludge Management Permit’’ (OMB

Number 2040–0086) contains

information that responds to this issue

for all storm water discharges, including

those facilities designated into the

program. EPA will review and revise the

estimates contained in this ICR, as

appropriate, in its renewal process.

D. Regulatory Flexibility Act

Under the Regulatory Flexibility Act

(RFA), 5 U.S.C. 601 et seq., EPA must

prepare a Regulatory Flexibility

Analysis for regulations having a

significant impact on a substantial

number of small entities. The RFA

recognizes three kinds of small entities,

and defines them as follows:

(1) Small governmental

jurisdictions—any government of a

district with a population of less than

50,000.

(2) Small business—any business

which is independently owned and

operated and not dominant in its field,

as defined by the Small Business

Administration regulations under the

Small Business Act.

(3) Small organization—any not-forprofit enterprise that is independently

owned and operated and not dominant

in its field.

EPA has determined that today’s rule

would not have a significant impact on

a substantial number of small entities,

and that a Regulatory Flexibility

Analysis therefore is unnecessary. The

basis for this determination is through

today’s action EPA is benefiting small

entities as this action (1) adopts a

common sense approach to deal with

the issue of storm water phase II

requirements, (2) provides the ability for

the State/Tribe or EPA to manage for

results by providing flexibility to the

permitting authority to deal with storm

water phase II permitting at this time

based on water quality violations or

significant contribution of pollutants,

and (3) clarifies and reduces currently

applicable burdens for those facilities

current subject to phase II statutory

requirements. Finally, the Agency is

committed to issue its comprehensive

storm water phase II program

regulations by March 1, 1999; in that

rulemaking EPA will reconsider its

Regulatory Flexibility Act analysis.

E. Unfunded Mandates

Under section 202 of the Unfunded

Mandates Reform Act of 1995

(‘‘Unfunded Mandates Act’’), signed

into law on March 22, 1995, EPA must

prepare a written statement to

accompany proposed rules where the

estimated costs to State, local, or tribal

governments, or to the private sector,

will be $100 million or more in any one

year. Under section 205, EPA must

select the most cost-effective and least

burdensome alternative that achieves

the objective of such a rule and that is

consistent with statutory requirements.

Section 203 requires EPA to establish a
17956 Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules and Regulations

plan for informing and advising any

small governments that may be

significantly and uniquely affect by any

rule.

EPA estimates that the costs to State,

local, or tribal governments, or the

private sector, from this rule will be less

than $100 million. This rulemaking

significantly reduces the immediate

regulatory burden imposed on phase II

facilities. EPA has determined that an

unfunded mandates statement therefore

is unnecessary.

Although not required to make a

finding under section 206, EPA

concludes that this rule is cost-effective

and a significant reduction in burden for

State and local governments. In a

September 9, 1992, Federal Register

notice, EPA invited comment process

for public consideration of reasonable

alternative approaches for the phase II

storm water program. Today’s rule

provides for the first step for any of

those alternatives by providing for an

orderly process for development of

regulations. By establishing regulatory

relief until development of those

alternative approaches, today’s

rulemaking itself provides the most

cost-effective and least burdensome

alternative to achieve the objectives of

the rule at this stage, consistent with

statutory requirements.

As discussed previously, EPA

initiated consultation with

representative organizations of small

governments under Executive Order

12875. In doing so, EPA provided notice

to potentially affected small

governments to enable them to provide

meaningful and timely input. EPA plans

to inform, educate, and advise small

governments on compliance with any

requirements that may be develop in

further development of storm water

phase II rules in the course of the wet

weather advisory committee convened

for this purpose. That committee will

also provide advice related to

reconsideration of existing application

requirements that already affect small

governments.

F. Administrative Procedure

Requirements

The Agency is publishing this action

as a ‘‘direct final’’ rule. A direct final

rule is not an ‘‘interim final’’ rule (i.e.

a rule which provides for public

comment after it has gone into effect);

rather it is a rule which is published

with a delayed effective date allowing

for the receipt of and response to public

comment before the rule goes into effect.

A response to all comments received

will be placed in the docket for this

rulemaking prior to the effective date.

This rulemaking thus fully complies

with notice-and-comment requirements

under the Administrative Procedure Act

(APA). EPA has chosen to use the direct

final approach for this rule because the

Agency does not expect to receive

significant adverse or critical comment

and to allow for the most expeditious

implementation possible, consistent

with the APA. Because in the absence

of this rule, thousands of municipalities

and other storm water discharges are

currently operating in violation of the

CWA, EPA believes that prompt

implementation of this rule is very

important.

However, consistent with APA

requirements, if EPA does receive

significant adverse or critical comment,

EPA will withdraw this rule prior to its

effective date and proceed with a

normal rulemaking process. As a result,

elsewhere in today’s Federal Register,

EPA is also proposing this rule. If EPA

decides to withdraw the direct final rule

based on public comment, EPA will

proceed with rulemaking based on this

proposal. There will not be an

additional comment period, so parties

interested in commenting on the

proposed rule should do so at this time.

List of Subjects

40 CFR Part 122

Administrative practice and

procedure, Confidential business

information, Hazardous substances,

Reporting and recordkeeping

requirements, Water pollution control.

40 CFR Part 124

Administrative practice and

procedure, Air pollution control,

Hazardous waste, Indian lands,

Reporting and recordkeeping

requirements, Water pollution control,

Water supply.

Dated: March 29, 1995.

Carol M. Browner,

Administrator.

For the reasons set forth in this

preamble, parts 122 and 124 of title 40

of the Code of Federal Regulations are

amended as follows:

PART 122—[AMENDED]

1. The authority citation for part 122

continues to read as follows:

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

et seq.

2. Section 122.21 is amended by

adding a sentence to the end of

paragraph (c)(1) to read as follows:

§ 122.21 Application for a permit

(applicable to State programs, see § 123.25).

* * * * *

(c) Time to apply.

(1) * * * New discharges composed

entirely of storm water, other than those

dischargers identified by § 122.26(a)(1),

shall apply for and obtain a permit

according to the application

requirements in § 122.26(g).

* * * * *

3. Section 122.26 is amended as

follows:

a. In paragraph (a)(1) introductory text

by revising ‘‘October 1, 1992’’ to read

‘‘October 1, 1994’’.

b. By adding paragraph (a)(9) as set

forth below.

c. By revising the title of paragraph (e)

introductory text as set forth below;

d. In paragraph (e)(1)(ii) by revising

the phrase ‘‘permit applications

requirements are reserved’’ to read

‘‘permit application requirements are

contained in paragraph (g) of this

section’’.

e. By adding paragraph (g) as set forth

below.

§ 122.26 Storm water discharges

(applicable to State NPDES programs, see

§ 123.25).

(a) * * *

(9) On and after October 1, 1994,

discharges composed entirely of storm

water, that are not otherwise already

required by paragraph (a)(1) of this

section to obtain a permit, shall be

required to apply for and obtain a

permit according to the application

requirements in paragraph (g) of this

section. The Director may not require a

permit for discharges of storm water as

provided in paragraph (a)(2) of this

section or agricultural storm water

runoff which is exempted from the

definition of point source at §§ 122.2

and 122.3.

* * * * *

(e) Application deadlines under

paragraph (a)(1). * * *

* * * * *

(g) Application requirements for

discharges composed entirely of storm

water under Clean Water Act section

402(p)(6). Any operator of a point

source required to obtain a permit under

paragraph (a)(9) of this section shall

submit an application in accordance

with the following requirements.

(1) Application deadlines. The

operator shall submit an application in

accordance with the following

deadlines:

(i) A discharge which the Director

determines to contribute to a violation

of a water quality standard or is a

significant contributor of pollutants to

waters of the United States shall apply

for a permit to the Director within 180

days of receipt of notice, unless

permission for a later date is granted by

the Director (see 40 CFR 124.52(c)); or
Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Rules and Regulations 17957

(ii) All other discharges shall apply to

the Director no later than August 2,

2001.

(2) Application requirements. The

operator shall submit an application in

accordance with the following

requirements, unless otherwise

modified by the Director:

(i) Individual application for nonmunicipal discharges. The requirements

contained in paragraph (c)(1) of this

section.

(ii) Application requirements for

municipal separate storm sewer

discharges. The requirements contained

in paragraph (d) of this section.

(iii) Notice of intent to be covered by

a general permit issued by the Director.

The requirements contained in 40 CFR

122.28(b)(2).

PART 124—[AMENDED]

4. The authority citation for part 124

continues to read as follows:

Authority: Resource Conservation and

Recovery Act, 42 U.S.C. 3901 et seq.; Safe

Drinking Water Act, 42 U.S.C. 300(f) et seq.;

Clean Water Act, 33 U.S.C. 1251 et seq.;

Clean Air Act, 42 U.S.C. 7401 et seq.

5. Section 124.52 is amended by

revising the parenthetical statement in

paragraph (c) to read as follows:

§ 124.52 Permits required on a case-bycase basis.

* * * * *

(c) * * * (see 40 CFR 122.26 (a)(1)(v),

(c)(1)(v), and (g)(1)(i)) * * *

6. Section 124.52 is amended by

revising the next to the last sentence in

paragraph (c) to read as follows:

§ 124.52 Permits required on a case-bycase basis.

* * * * *

(c) * * * The discharger must apply

for a permit under 40 CFR 122.26

(a)(1)(v) and (c)(1)(v) within 60 days of

notice or under 40 CFR 122.26(g)(1)(i)

within 180 days of notice, unless

permission for a later date is granted by

the Regional Administrator. * * *

[FR Doc. 95–8209 Filed 4–6–95; 8:45 am]

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