Final Modification of the National Pollutant Discharge Elimination System (NPDES) Storm Water Multi-Sector General Permit for Industrial Activities; Termination of the EPA NPDES Storm Water Baseline Industrial General Permit
Federal RegisterSep 30, 1998
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SUMMARY: The Regional Administrators of EPA Regions I, II, III, IV, VI,
IX, and X are today providing final notice of modifications to EPA's
final NPDES Storm Water Multi-Sector General Permit (MSGP) which was
first issued on September 29, 1995 (60 FR 50804), and amended on
February 9, 1996 (61 FR 5248), February 20, 1996 (61 FR 6412), and
September 24, 1996 (61 FR 50020). EPA has modified the MSGP to
authorize storm water discharges from previously excluded facilities so
that they may be covered by the MSGP after expiration of EPA's Baseline
Industrial General Permit. EPA also finalized the following limited
specific changes to the MSGP as published on September 29, 1995 (60 FR
50804): (1) Authorization of mine dewatering discharges from
construction sand and gravel, industrial sand, and crushed stone mines
in EPA Regions I, II and X; (2) inclusion in Sector A of the MSGP of
the effluent limitation guideline in 40 CFR Part 429, Subpart I for
discharges resulting from spray down of lumber and wood products in
storage yards (wet decking); (3) clarification that Sectors X and AA
authorize discharges from all facilities in major SIC groups 27 and 34
respectively; (4) addition of new Sector AD to the MSGP to authorize
discharges from Phase I facilities which may not fall into one of the
original sectors of the permit, and selected Phase II discharges which
are designated for permitting in accordance with 40 CFR
122.26(g)(1)(i); (5) modification of inspection requirements in Sector
I for inactive oil and gas extraction facilities which are remotely
located and unstaffed; (6) addition of new Addendum I to provide
guidance and information to assist applicants with determining permit
eligibility concerning protection of historic properties; and (7)
update of the county/species list of endangered and threatened species
found in Addendum H, and provide a listing of additional sources to
reference for future updates to the list.
The Regional Administrators are also providing final notice that
the Agency is not reissuing the NPDES storm water Baseline Industrial
General Permit which was issued on September 9, 1992 (57 FR 41236) or
September 25, 1992 (57 FR 44438), depending on the geographic area of
applicability, and to terminate this permit (with the limited
exceptions discussed in Section I below) upon final modification of the
multi-sector permit. As a result, all industrial facilities previously
permitted under the Baseline Industrial General Permit, except as
otherwise specified in this notice, are required to seek storm water
permit coverage under the modified MSGP within 90 days after the
publication of this final notice or submit an application for an
individual NPDES permit.
This action also provides notice for the issuance of the final
NPDES MSGP (including today's modifications) for storm water discharges
associated with industrial activity for American Samoa and the
Commonwealth of the Northern Mariana Islands (CNMI). The geographic
area of coverage of the MSGP is being revised today to include American
Samoa and CNMI on the list of areas for which discharges may be
authorized.
DATES: The modifications to the MSGP are effective upon publication of
this notice for discharges for which EPA is currently the permitting
authority. This will allow new dischargers which have not been able to
obtain discharge authorization since the Baseline Industrial General
Permit expired to obtain coverage under the MSGP as soon as possible.
Except as specified otherwise in this notice, termination of
administratively extended permit coverage for facilities permitted
under the Baseline Industrial General Permit will take effect 92 days
after the date of publication of this notice in areas where EPA is the
NPDES permitting authority. Where EPA has approved State NPDES programs
with authority over discharges covered by the Baseline Industrial
General Permit, that permit will remain in effect by operation of law
until superseded by either a State-issued NPDES permit or an EPA permit
issued under section 402(d)(4) of the Clean Water Act.
ADDRESSES: The index to the administrative record for this permit is
available at the appropriate Regional Office or from the EPA Water
Docket Office in Washington, DC. The administrative record is stored in
two locations. Documents immediately referenced in this modification
notice are stored at the EPA Water Docket Office at the address listed
below. All other documents which were used to support the original
issuance of the MSGP in 1995 are a supplement to the record for this
modification action but are stored at Science Applications
International Corporation (SAIC), 1710 Goodridge Drive, McLean,
Virginia 22102. These materials include, for example, the permit
applications and sampling data provided to EPA by group applicants. The
immediate and supplemental record is available for inspection from 9
a.m. to 4 p.m., Monday through Friday, excluding legal holidays. For
appointments to examine any portion of the administrative record,
please call the Water Docket Office at (202) 260-3027. Copies of the
final permit modifications may be acquired from the Office of Water
Resource Center by dialing (202) 260-7786. A reasonable fee may be
charged for copying. Specific record information can also be made
available at the appropriate Regional Office upon request.
FOR FURTHER INFORMATION CONTACT: For further information on the final
permit modifications, contact the appropriate EPA Regional Office. The
name, address and phone number of the EPA Regional Storm Water
Coordinators are provided in Part III.H of this Fact Sheet.
SUPPLEMENTARY INFORMATION: The following Fact Sheet provides background
information and explanations for the permitting actions and
modifications taken by EPA in today's notice. The actual language of
the final permit modifications appears after Appendix B of the Fact
Sheet.
Fact Sheet
Table of Contents
I. Background
II. Coverage of Final Modified MSGP
III. Requirements for Transferred Facilities
A. Notification Requirements
1. Historic Preservation
2. Endangered Species
3. North American Industry Classification System
B. Special Conditions
1. Non-storm Water Discharges
2. Releases of Reportable Quantities of Hazardous Substances and
Oil
3. Co-located Industrial Facilities
C. SWPPP Requirements
1. Deadline for SWPPP Revision and Implementation for
Transferred Facilities
2. Special Requirements for Facilities Subject to EPCRA Section
313
D. Monitoring and Reporting Requirements
1. Sampling Schedule
2. Sample Type
[[Page 52431]]
3. Quarterly Visual Examination Requirements of the MSGP
4. Exemptions for Analytical Monitoring
5. Reporting Requirements
E. Numeric Effluent Limitations
F. Miscellaneous Final Permitting Actions
1. Coverage of Mine Dewatering Discharges in EPA Regions I, II
and X
2. Discharges Resulting from Spray Down of Lumber and Wood
Products in Storage Yards in Sector A
3. Clarification of Coverage in Sectors X and AA of the MSGP
4. Addition of Sector AD to the MSGP
5. Modification of Inspection Requirements for Inactive Oil and
Gas Extraction Facilities in Sector I
G. Response to National Mining Association Concerning Sector G of
the MSGP
H. Regional Offices
IV. Cost Estimates
V. Economic Impact (Executive Order 12866)
VI. Unfunded Mandates Reform Act
VII. Paperwork Reduction Act
VIII. Regulatory Flexibility Act
IX. Official Signatures
X. Notice of Final MSGP for American Samoa and the Commonwealth of the
Northern Mariana Islands (CNMI)
Appendix A--Summary of Responses to Public Comments on the July 11,
1997, Proposal to Modify the Multi-Sector General Permit and
Terminate the Baseline Industrial General Permit
Appendix B--Summary of MSGP and Baseline Permit Requirements
I. Background
On September 9, 1992 (57 FR 41175) or September 25, 1992 (57 FR
44412), depending on the geographic area involved, EPA issued a final
NPDES storm water baseline industrial general permit (not including
construction activity) for the following areas:
EPA Region I--for the States of Maine, Massachusetts and New
Hampshire; and for Indian country located in Massachusetts, New
Hampshire and Maine.
EPA Region II--for Puerto Rico and Indian country located in New
York. (On April 14, 1993, EPA proposed modifications to the baseline
general permit issued in Puerto Rico to address changes to the 401
certification conditions requested by the Environmental Quality Board
(EQB) of Puerto Rico. On September 24, 1993 the changes became final.
These modifications, however, did not alter the original issuance and
expiration date of the baseline general permit in Puerto Rico.)
EPA Region III--for the District of Columbia and Federal facilities
in Delaware.
EPA Region IV--for the State of Florida; and for Indian country
located in Florida, Mississippi, and North Carolina.
EPA Region VI--for the States of Louisiana, New Mexico, Oklahoma
and Texas; and for Indian country located in Louisiana, New Mexico
(except Navajo lands and Ute Mountain Reservation lands), Oklahoma, and
Texas.
EPA Region VIII--for the State of South Dakota; for Indian country
located in Colorado, Montana, South Dakota, North Dakota, Utah (except
Goshute Reservation and Navajo Reservation lands), and Wyoming; for
Federal facilities in Colorado; and for the Ute Mountain Reservation in
Colorado and New Mexico.
EPA Region IX--for the State of Arizona; for the Territories of
Johnston Atoll, American Samoa, Guam, and Midway and Wake Islands; and
for Indian country located in California, and Nevada; and for the
Goshute Reservation in Utah and Nevada, the Navajo Reservation in Utah,
New Mexico, and Arizona, the Duck Valley Reservation in Nevada and
Idaho.
EPA Region X--for the States of Alaska and Idaho; for Indian
country located in Alaska, Idaho (except Duck Valley Reservation
lands), and Washington; and for Federal facilities in Washington.
Most of the above areas were covered by the September 9, 1992,
notice of permit issuance. The September 25, 1992, notice covered only
the States of Florida (except for Indian lands which were covered by
the September 9, 1992 notice) and Massachusetts, Puerto Rico, the
District of Columbia, Guam and American Samoa, Indian country in New
York and Federal facilities in Delaware. The baseline permit expired on
September 9, 1997 or September 25, 1997, depending on the area of
applicability, and EPA is not reissuing the baseline permit in those
areas where today's MSGP modification is effective. As a result, most
industrial facilities previously permitted under the baseline permit
(except for those located in certain excluded areas discussed below)
are therefore required to seek storm water permit coverage under
today's modified MSGP or an individual permit. The MSGP which was
originally issued on September 29, 1995 (60 FR 50804), and amended on
February 9, 1996 (61 FR 5248), February 20, 1996 (61 FR 6412), and
September 24, 1996 (61 FR 50020).
The excluded areas where the baseline permit will continue to apply
are those areas where the baseline permit had been effective, but where
the modified MSGP is not effective. These areas include Federal
facilities in Colorado, and Indian country located in Colorado
(including the portion of the Ute Mountain Reservation located in New
Mexico), Montana, North Dakota, South Dakota (including the portion of
the Pine Ridge Reservation located in Nebraska), Utah (except for the
Goshute and Navajo Reservation lands (see Region IX)) and Wyoming.
Maintaining storm water permit coverage under the baseline permit is
necessary since the MSGP does not apply to facilities located in these
areas, and the Agency is not expanding the MSGP's scope of coverage to
include them through this modification. In addition, for facilities
where individual permits are required, baseline permit coverage will be
extended until final determinations are made on the individual permit
applications.
EPA's July 11, 1997 notice of the proposed modification of the MSGP
had included American Samoa among the areas where the baseline permit
would be extended (62 FR 37448). However, since the MSGP is now
effective in American Samoa by today's action (see Section X below),
extension of the baseline permit is no longer necessary in this area.
There are also a few areas where the baseline permit was issued but
not the MSGP, where the baseline permit is nevertheless being
terminated. These areas are Indian country in New York, North Carolina
and Mississippi. Only a very small number of permittees exist in these
areas and individual permits will be issued as needed.
Permit numbers for New Hampshire Federal Indian Reservations
(NHR05*##F) and Vermont Federal Indian Reservations (VTR05*##F) have
been removed from the EPA Region I ``Areas of Coverage'' in the final
permit modification because no Federally recognized Tribes exist in
these States.
It should also be pointed out that in certain states which had been
covered by the 1992 baseline permit, the NPDES permit program has now
been delegated to the state (except for Indian country in these
states). These states are South Dakota, Louisiana and Oklahoma, and
permittees in these states (except for certain oil and gas facilities
in Oklahoma) are now subject to permitting by the state. In Oklahoma,
EPA will maintain NPDES permitting authority over oil and gas
exploration and production related industries, and pipeline operations,
which are regulated by the Oklahoma Corporation Commission (See 61 FR
65049). Oklahoma received NPDES program authorization for only those
discharges covered by the authority of the Oklahoma Department of
Environmental Quality (ODEQ).
[[Page 52432]]
The action of transferring permittees currently covered by the
baseline permit to the MSGP is consistent with the long-term permitting
strategy for storm water discharges associated with industrial activity
which was finalized on April 2, 1992 (57 FR 11394). This strategy
includes the following four permitting tiers:
Tier I--Baseline Permitting--One or more general permits will be
developed to initially cover the majority of storm water discharges
associated with industrial activity.
Tier II--Watershed Permitting--Facilities within watersheds shown
to be adversely impacted by storm water discharges associated with
industrial activity will be targeted for individual or watershed-
specific general permits.
Tier III--Industry-Specific Permitting--Specific industry
categories will be targeted for individual or industry-specific general
permits.
Tier IV--Facility-Specific Permitting--A variety of factors will be
used to target specific facilities for individual permits.
The long-term permitting strategy begins with baseline permitting
as was done in 1992 with the baseline general permit. However, baseline
permitting may not provide optimum water quality benefits since the
same basic permit conditions are applied to a wide variety of
facilities operating in different geographic areas. As such, the long-
term strategy also calls for additional permitting over time with more
specific permit conditions developed for facilities in Tiers II, III
and IV above.
The MSGP is based on information received as a result of the group
permit application process described at 40 CFR 122.26(c)(2). EPA
received applications from approximately 1,200 groups representing
nearly all of the categories of industrial facilities listed in the
storm water regulations at 40 CFR 122.26(b)(14). To facilitate permit
issuance for the group applications, EPA consolidated the groups into
29 industrial sectors, with subsectors also included in certain sectors
as appropriate.
The group applications included information concerning the specific
types of operations which are present at the different types of
industrial facilities, potential sources of pollutants from the
facilities, industry-specific best management practices (BMPs) which
are available, and monitoring data from the different types of
facilities. Using this information, EPA was able to develop sector-
specific BMPs for the MSGP which are better tailored to controlling the
discharges of pollutants from the various facilities than the
requirements of the baseline permit which only include generic BMP
requirements which are applied across a wide variety of industries. In
addition, the monitoring requirements of the MSGP are based on actual
monitoring data rather than best professional judgment which is largely
the case for the baseline permit.
Given the above factors, EPA believes that the MSGP should provide
improved water quality benefits as compared to the baseline permit. For
this reason, and in accordance with the long-term permitting strategy,
EPA is transferring permit coverage from the baseline permit to the
MSGP after expiration of the baseline permit.
As discussed in Section II below, the MSGP omitted coverage for a
small number of categories of facilities which were authorized to
discharge under the baseline general permit. As such, EPA is today
modifying the coverage of the MSGP to include these categories in order
that they may be eligible for coverage when transferring from the
baseline permit to the MSGP.
II. Coverage of Final Modified MSGP
The final modified multi-sector storm water permit covers storm
water discharges associated with industrial activity in most geographic
areas where EPA is the NPDES permitting authority, described earlier in
this fact sheet. In accordance with the long-term permitting strategy
discussed above, EPA's intent when issuing the baseline general permit
was to cover all of the categories of industrial facilities which may
discharge storm water associated with industrial activity as defined at
40 CFR 122.26(b)(14). The baseline permit did include certain generic
coverage limitations which are also found in Section I.B.3 of the MSGP.
These exclusions include discharges such as those which may contribute
to a violation of a water quality standard, and discharges which
adversely affect endangered species or their critical habitat.
As noted above, group applications were not received from all of
the categories of facilities listed at 40 CFR 122.26(b)(14), and
certain categories were not included in the MSGP which had been
included in the baseline permit. In order to cover all the types of
facilities to be transferred from the baseline permit, EPA is today
expanding the coverage of the MSGP to authorize storm water discharges
from these additional categories of facilities.
The MSGP had already authorized storm water discharges from a wide
range of industrial facilities which are summarized below in Table 1:
Table 1.--Sector/Subsectors Covered by the MSGP
----------------------------------------------------------------------------------------------------------------
Subsector SIC code Activity represented
----------------------------------------------------------------------------------------------------------------
Sector A. Timber Products
----------------------------------------------------------------------------------------------------------------
1*.............................. 2421 General Sawmills and Planning
Mills.
2............................... 2491 Wood Preserving.
3*.............................. 2411 Log Storage and Handling.
4*.............................. 2426 Hardwood Dimension and Flooring
Mills.
2429 Special Product Sawmills, Not
Elsewhere Classified.
243X** (except 2434) Millwork, Veneer, Plywood, and
Structural Wood.
244X Wood Containers.
245X Wood Buildings and Mobile
Homes.
2493 Reconstituted Wood Products.
2499 Wood Products, Not Elsewhere
Classified.
----------------------------------------------------------------------------------------------------------------
Sector B. Paper and Allied Products Manufacturing
----------------------------------------------------------------------------------------------------------------
1............................... 261X Pulp Mills.
2............................... 262X Paper Mills.
3*.............................. 263X Paperboard Mills.
4............................... 265X Paperboard Containers and
Boxes.
[[Page 52433]]
5............................... 267X Converted Paper and Paperboard
Products, Except Containers
and Boxes.
----------------------------------------------------------------------------------------------------------------
Sector C. Chemical and Allied Products Manufacturing
----------------------------------------------------------------------------------------------------------------
1*.............................. 281X Industrial Inorganic Chemicals.
2*.............................. 282X Plastics Materials and
Synthetic Resins, Synthetic
Rubber, Cellulosic and Other
Manmade Fibers Except Glass.
4*.............................. 284X Soaps, Detergents, and Cleaning
Preparations; Perfumes,
Cosmetics, and Other Toilet
Preparations.
5............................... 285X Paints, Varnishes, Lacquers,
Enamels, and Allied Products.
6............................... 286X Industrial Organic Chemicals.
7*.............................. 287X Agricultural Chemicals.
8............................... 289X Miscellaneous Chemical
Products.
9............................... 3952 (limited to list) Inks and Paints, Including
China Painting Enamels, India
Ink, Drawing Ink, Platinum
Paints for Burnt Wood or
Leather Work, Paints for China
Painting, Artist's Paints and
Artist's Watercolors.
----------------------------------------------------------------------------------------------------------------
Sector D. Asphalt Paving and Roofing Materials Manufacturers and Lubricant Manufacturers
----------------------------------------------------------------------------------------------------------------
1*.............................. 295X Asphalt Paving and Roofing
Materials.
2............................... 299X Miscellaneous Products of
Petroleum and Coal.
----------------------------------------------------------------------------------------------------------------
Sector E. Glass, Clay, Cement, Concrete, and Gypsum Product Manufacturing
----------------------------------------------------------------------------------------------------------------
1............................... 321X Flat Glass.
322X Glass and Glassware, Pressed or
Blown.
323X Glass Products Made of
Purchased Glass.
2............................... 3241 Hydraulic Cement.
3*.............................. 325X Structural Clay Products.
326X (except 3261) Pottery and Related Products.
3297 Non-Clay Refractories.
4*.............................. 327X (except 3274) Concrete, Gypsum and Plaster
Products.
3295 Minerals and Earth's, Ground,
or Otherwise Treated.
----------------------------------------------------------------------------------------------------------------
Sector F. Primary Metals
----------------------------------------------------------------------------------------------------------------
1*.............................. 331X Steel Works, Blast Furnaces,
and Rolling and Finishing
Mills.
2*.............................. 332X Iron and Steel Foundries.
3............................... 333X Primary Smelting and Refining
of Nonferrous Metals.
4............................... 334X Secondary Smelting and Refining
of Nonferrous Metals.
5*.............................. 335X Rolling, Drawing, and Extruding
of Nonferrous Metals.
6*.............................. 336X Nonferrous Foundries
(Castings).
7............................... 339X Miscellaneous Primary Metal
Products.
----------------------------------------------------------------------------------------------------------------
Sector G. Metal Mining (Ore Mining and Dressing) ***
----------------------------------------------------------------------------------------------------------------
1............................... 101X Iron Ores.
2*.............................. 102X Copper Ores.
3............................... 103X Lead and Zinc Ores.
4............................... 104X Gold and Silver Ores.
5............................... 106X Ferroalloy Ores, Except
Vanadium.
6............................... 108X Metal Mining Services.
7............................... 109X Miscellaneous Metal Ores.
----------------------------------------------------------------------------------------------------------------
Sector H. Coal Mines and Coal Mining-Related Facilities
----------------------------------------------------------------------------------------------------------------
NA*............................. 12XX Coal Mines and Coal Mining-
Related Facilities.
----------------------------------------------------------------------------------------------------------------
Sector I. Oil and Gas Extraction
----------------------------------------------------------------------------------------------------------------
1*.............................. 131X Crude Petroleum and Natural
Gas.
2............................... 132X Natural Gas Liquids.
3*.............................. 138X Oil and Gas Field Services.
----------------------------------------------------------------------------------------------------------------
Sector J. Mineral Mining and Dressing
----------------------------------------------------------------------------------------------------------------
1*.............................. 141X Dimension Stone.
142X Crushed and Broken Stone,
Including Rip Rap.
148X Nonmetallic Minerals, Except
Fuels.
2*.............................. 144X Sand and Gravel.
3............................... 145X Clay, Ceramic, and Refractory
Materials.
4............................... 147X Chemical and Fertilizer Mineral
Mining.
[[Page 52434]]
149X Miscellaneous Nonmetallic
Minerals, Except Fuels.
----------------------------------------------------------------------------------------------------------------
Sector K. Hazardous Waste Treatment Storage or Disposal Facilities
----------------------------------------------------------------------------------------------------------------
NA*............................. NA Hazardous Waste Treatment
Storage or Disposal.
----------------------------------------------------------------------------------------------------------------
Sector L. Landfills and Land Application Sites
----------------------------------------------------------------------------------------------------------------
NA*............................. NA Landfills and Land Application
Sites.
----------------------------------------------------------------------------------------------------------------
Sector M. Automobile Salvage Yards
----------------------------------------------------------------------------------------------------------------
NA*............................. 5015 Automobile Salvage Yards.
----------------------------------------------------------------------------------------------------------------
Sector N. Scrap Recycling Facilities
----------------------------------------------------------------------------------------------------------------
NA*............................. 5093 Scrap Recycling Facilities.
----------------------------------------------------------------------------------------------------------------
Sector O. Steam Electric Generating Facilities
----------------------------------------------------------------------------------------------------------------
NA*............................. NA Steam Electric Generating
Facilities.
----------------------------------------------------------------------------------------------------------------
Sector P. Land Transportation
----------------------------------------------------------------------------------------------------------------
1............................... 40XX Railroad Transportation.
2............................... 41XX Local and Highway Passenger
Transportation.
3............................... 42XX (except 4221-4225) Motor Freight Transportation
and Warehousing.
4............................... 43XX United States Postal Service.
5............................... 5171 Petroleum Bulk Stations and
Terminals.
----------------------------------------------------------------------------------------------------------------
Sector Q. Water Transportation
----------------------------------------------------------------------------------------------------------------
NA*............................. 44XX Water Transportation.
----------------------------------------------------------------------------------------------------------------
Sector R. Ship and Boat Building or Repairing Yards
----------------------------------------------------------------------------------------------------------------
NA.............................. 373X Ship and Boat Building or
Repairing Yards.
----------------------------------------------------------------------------------------------------------------
Sector S. Air Transportation Facilities
----------------------------------------------------------------------------------------------------------------
NA*............................. 45XX Air Transportation Facilities.
----------------------------------------------------------------------------------------------------------------
Sector T. Treatment Works
----------------------------------------------------------------------------------------------------------------
NA*............................. NA Treatment Works.
----------------------------------------------------------------------------------------------------------------
Sector U. Food and Kindred Products
----------------------------------------------------------------------------------------------------------------
1............................... 201X Meat Products.
2............................... 202X Dairy
Products.'''''''''''''''''''''
''''''''''''''''''''''''''''''
''''''''''''''''''''''''''''''
''''''''''''''''''''''''''''''
3............................... 203X Canned, Frozen and Preserved
Fruits, Vegetables and Food
Specialties.
4*.............................. 204X Grain Mill Products.
5............................... 205X Bakery Products.
6............................... 206X Sugar and Confectionery
Products.
7*.............................. 207X Fats and Oils.
8............................... 208X Beverages.
9............................... 209X Miscellaneous Food Preparations
and Kindred Products
Manufacturing.
21XX Tobacco Products Manufacturing.
----------------------------------------------------------------------------------------------------------------
Sector V. Textile Mills, Apparel, and Other Fabric Product
----------------------------------------------------------------------------------------------------------------
1............................... 22XX Textile Mill Products.
2............................... 23XX Apparel and Other Finished
Products Made From Fabrics and
Similar Materials.
----------------------------------------------------------------------------------------------------------------
Sector W. Furniture and Fixtures
----------------------------------------------------------------------------------------------------------------
NA.............................. 25XX Furniture and Fixtures.
2434 Wood Kitchen Cabinets.
----------------------------------------------------------------------------------------------------------------
Sector X. Printing and Publishing
----------------------------------------------------------------------------------------------------------------
NA.............................. 2732 Book Printing.
2752 Commercial Printing,
Lithographic.
2754 Commercial Printing, Gravure.
[[Page 52435]]
2759 Commercial Printing, Not
Elsewhere Classified.
2796 Platemaking and Related
Services.
----------------------------------------------------------------------------------------------------------------
Sector Y. Rubber, Miscellaneous Plastic Products, and Miscellaneous Manufacturing Industries
----------------------------------------------------------------------------------------------------------------
1*.............................. 301X Tires and Inner Tubes.
302X Rubber and Plastics Footwear.
305X Gaskets, Packing, and Sealing
Devices and Rubber and
Plastics Hose and Belting.
306X Fabricated Rubber Products, Not
Elsewhere Classified.
2............................... 308X Miscellaneous Plastics
Products.
393X Musical Instruments.
394X Dolls, Toys, Games and Sporting
and Athletic Goods.
395X Pens, Pencils, and Other
Artists' Materials.
396X Costume Jewelry, Costume
Novelties, Buttons, and
Miscellaneous Notions, Except
Precious Metal.
399X Miscellaneous Manufacturing
Industries.
----------------------------------------------------------------------------------------------------------------
Sector Z. Leather Tanning and Finishing
----------------------------------------------------------------------------------------------------------------
NA.............................. 311X Leather Tanning and Finishing.
NA.............................. NA Facilities that Make Fertilizer
Solely from Leather Scraps and
Leather Dust.
----------------------------------------------------------------------------------------------------------------
Sector AA. Fabricated Metal Products
----------------------------------------------------------------------------------------------------------------
1*.............................. 3429 Cutlery, Hand Tools, and
General Hardware.
3441 Fabricated Structural Metal
Products.
3442 Metal Doors; Sash, Frames
Molding and Trim.
3443 Fabricated Plate Work (Boiler
Shops).
3444 Sheet Metal Work.
3451 Screw Machine Products.
3452 Bolts, Nuts, Screws, Rivets,
and Washers.
3462 Metal Forgings and Stampings.
3471 Electroplating, Plating,
Polishing, Anodizing, and
Coloring.
3494 Valves and Pipe Fittings, Not
Elsewhere Classified.
3496 Miscellaneous Fabricated Wire
Products.
3499 Miscellaneous Fabricated Metal
Products.
391X Jewelry, Silverware, and Plated
Ware.
2*.............................. 3479 Coating, Engraving, and Allied
Services.
----------------------------------------------------------------------------------------------------------------
Sector AB. Transportation Equipment, Industrial or Commercial Machinery
----------------------------------------------------------------------------------------------------------------
NA.............................. 35XX (except 357) Industrial and Commercial
Machinery (except Computer and
Office Equipment.
NA.............................. 37XX (except 357) Transportation Equipment
(except Ship and Boat Building
and Repairing).
----------------------------------------------------------------------------------------------------------------
Sector AC. Electronic, Electrical, Photographic and Optical Goods
----------------------------------------------------------------------------------------------------------------
NA.............................. 36XX Electronic, Electrical.
38XX Measuring, Analyzing and
Controlling Instrument;
Photographic and Optical
Goods.
357 Computer and Office Equipment.
----------------------------------------------------------------------------------------------------------------
* Denotes subsector with analytical (chemical) monitoring requirements.
** X or XX denotes any number or numbers from 0 to 9 in the SIC code. NA indicates those industry sectors in
which subdivision into subsectors was determined to be not applicable.
*** EPA intends to issue a modification of the MSGP for this section shortly, in a separate FR notice.
EPA reviewed the categories of additional facilities to be added to
the MSGP and also considered the coverage and existing requirements of
the various sectors/subsectors already included in the MSGP. Based on
this review, EPA concluded that for each category of facility to be
added, a sector/subsector of the MSGP was available with appropriate
BMP and monitoring requirements for the new categories. The new
categories of facilities, and the sectors/subsectors in which they have
been added by today's MSGP modification, are summarized in Table 2
below. EPA has also added a new Sector AD which will allow coverage for
any regulated storm water discharge associated with industrial activity
not described by any of the other sectors.
Table 2.--Placement of Additional Facilities Into the MSGP
------------------------------------------------------------------------
SIC code MSGP sector/subsector
------------------------------------------------------------------------
2833-2836--Medicinal chemicals and Subsector i (Drugs) of Sector C--
botanical products; pharmaceutical Chemical and Allied Products
preparations; in vitro and in vivo Manufacturing
diagnostic substances; biological
products, except diagnostic
substances.
2911--Petroleum refining........... Sector I--Oil and Gas Extraction
[[Page 52436]]
3131--Boot and shoe cut stock and Sector V--Textile Mills, Apparel
findings (leather soles, inner and other Fabric Products
soles, other boot and finished
wood heels).
3142-3144--house slippers; men's Sector V--Textile Mills, Apparel
dress, street and work shoes; and other Fabric Products
women's dress, street and work
shoes.
3149--Footwear, except rubber, Sector V--Textile Mills, Apparel
include athletic shoes. and other Fabric Products
3151--Leather gloves and mittens... Sector V--Textile Mills, Apparel
and other Fabric Products
3161--Luggage and cases............ Sector V--Textile Mills, Apparel
and other Fabric Products
3171--Women's handbags and purses, Sector V--Textile Mills, Apparel
leather. and other Fabric Products
3172--Personal leather goods, e.g., Sector V--Textile Mills, Apparel
billfolds, key cases, coin purses, and other Fabric Products
checkbooks, etc..
3199--Leather goods, not elsewhere Sector V--Textile Mills, Apparel
classified, e.g., saddlery, belts, and other Fabric Products
holsters, leather aprons.
3231--Glass products, made of Subsector 1 (Glass Products) of
purchased glass. Sector E--Glass, Clay, Cement,
Concrete, and Gypsum Product
Manufacturing
3261--Vitreous china plumbing Subsector 3 (Structural clay
fixtures, and china and products, pottery and related
earthenware fitting and bathroom products and non-clay
accessories. refractories) of Sector E--Glass,
Clay , Cement, Concrete and Gypsum
Product Manufacturing
3274--Lime, agricultural/building Subsector 4 (Concrete, Gypsum and
lime, dolomite, lime plaster. Plaster Products) of Sector E--
Glass, Clay, Cement, Concrete, and
Gypsum Product Manufacturing
3281--Cut stone and stone products, Subsector 1 (Glass Products) of
benches, blackboards, table tops, Sector E--Glass, Clay, Cement,
pedestals, etc.. Concrete, and Gypsum Product
Manufacturing
3291--Abrasive products............ Subsector 1 (Glass Products) of
Sector E--Glass, Clay, Cement,
Concrete, and Gypsum Product
Manufacturing
3292--Asbestos products, tiles, Subsector 1 (Glass Products) of
building materials, except paper, Sector E--Glass, Clay, Cement,
insulating pipe coverings. Concrete, and Gypsum Product
Manufacturing
3296--Mineral wool, insulation..... Subsector 1 (Glass Products) of
Sector E--Glass, Clay, Cement,
Concrete, and Gypsum Product
Manufacturing
3299--Nonmetallic mineral products, Subsector 1 (Glass Products) of
not elsewhere classified, plaster Sector E--Glass, Clay, Cement,
of Paris and paper-mache, etc.. Concrete, and Gypsum Product
Manufacturing
4221-5--Warehousing facilities Subsector 3 (Motor Freight
without trucking services.. Transportation and Warehousing) of
Sector P--Land Transportation
LF--Open dumps..................... Sector L--Landfills and Land
Application Sites
------------------------------------------------------------------------
After a permittee previously covered by the baseline permit
transfers to the MSGP, the effluent limitations, monitoring
requirements and other conditions of the MSGP apply to the permittee's
facility as appropriate based on the sector/subsector in which facility
falls. The requirements for the new categories of facilities which have
been added to the MSGP are those set forth in the MSGP for the sectors/
subsectors shown above in Table 2. Section III below discusses the
differences between the baseline permit and the MSGP and the
requirements for transferred facilities.
III. Requirements for Transferred Facilities
In today's notice, EPA is making certain clarifications and
interpretations regarding how certain conditions of the MSGP will apply
to permittees transferring from the baseline general permit. These
interpretations and clarifications address: (1) Deadlines for storm
water pollution prevention plan revisions and implementation for
transferring permittees; (2) MSGP sampling schedules and sample types;
(3) the submittal of sampling data; (4) applicability of certain
limitations; (5) the applicability of the Endangered Species Act (ESA)
and National Historic Preservation Act (NHPA); (6) the applicability of
the co-located activities requirements; (7) use of the NOI form; (8)
applicability of the new North American Industry Classification System
(NAICS); (9) non-storm water discharges; (10) releases of reportable
quantities of hazardous substances and oil; and (11) exemptions from
analytical monitoring. These clarifications are discussed below.
The requirements of the MSGP, including sector-specific
requirements were described in detail in the fact sheet accompanying
the original issuance of the MSGP (September 29, 1995, 60 FR 50804) and
is incorporated by reference into this fact sheet. All transferring
facility operators should acquire a copy of the 1995 multi-sector
general permit and study it carefully to ensure full compliance with
all terms and conditions. Certain important requirements for facilities
which transfer to the MSGP from the baseline general permit are
emphasized below.
A. Notifications Requirements
To obtain coverage under the modified MSGP, facilities which
acquired extended coverage under the baseline industrial general permit
in accordance with the provisions of the Administrative Procedures Act
must submit a Notice of Intent (NOI) not later than 90 days after the
effective date of this MSGP modification. Baseline general permittees
that applied for and received extended coverage which are located in
areas identified in Part II.A.9. of this modification where the permit
is not being terminated may remain covered by the baseline permit until
further notice from EPA. Conversely, baseline general permittees that
applied for and received extended baseline permit coverage which are
ineligible for MSGP coverage per Part II.A.10 must submit an
application for an individual NPDES permit and may remain covered under
the baseline permit until a final decision is made by EPA on their
individual permit.
Under today's final modification, Part II.A.9 is added to the MSGP
which includes a 90 day period after the effective date of the modified
MSGP for submittal of an NOI for facilities transferring to the MSGP.
The NOI form currently in use for the MSGP can be found in Addendum B
to the MSGP published on September 29, 1995 (60 FR 51265). For
convenience, this form is also attached to this modification.
[[Page 52437]]
The NOI form for the MSGP differs from the form for the original
1992 baseline permit in that new requirements have been added to ensure
compliance with the National Historic Preservation Act (NHPA) and
Endangered Species Act (ESA). A discussion of these requirements, as
applicable to facilities transferring permit coverage to the MSGP,
follows below:
1. Historic Preservation
The National Historic Preservation Act (NHPA) requires Federal
agencies to take into account the effects of Federal undertakings,
including undertakings on historic properties that are either listed
on, or eligible for listing on, the National Register of Historic
Places. The term ``Federal undertaking'' is defined in the existing
NHPA regulations to include any project, activity, or program under the
direct or indirect jurisdiction of a Federal agency that can result in
changes in the character or use of historic properties, if any such
historic properties are located in the area of potential effects for
that project, activity, or program. See 36 CFR 802(o). Historic
properties are defined in the NHPA regulations to include prehistoric
or historic districts, sites, buildings, structures, or objects that
are included in, or are eligible for inclusion in, the National
Register of Historic Places. See 36 CFR 802(e).
Federal undertakings include the EPA's issuance of general NPDES
permits. In light of NHPA requirements, EPA included a provision in the
eligibility requirements of the 1995 MSGP for the consideration of the
effects to historic properties. That provision provides that an
applicant is eligible for permit coverage only if: (1) the applicant's
storm water discharges and best management practices (BMPs) to control
storm water runoff do not affect a historic property, or (2) the
applicant has obtained, and is in compliance with, a written agreement
between the applicant and the State Historic Preservation Officer
(SHPO) that outlines all measures to be taken by the applicant to
mitigate or prevent adverse effects to the historic property. See Part
I.B.6, 60 FR 51112 (September 29, 1995). When applying for permit
coverage, applicants are required to certify in the NOI that they are
in compliance with the Part I.B.6 eligibility requirements. Provided
there are no other factors limiting permit eligibility, MSGP coverage
is then granted 48 hours after the postmark on the envelope used to
mail the NOI.
In today's modification EPA is including two revisions with respect
to historic properties. First, EPA is amending Part I.B.6.(ii) to
include a reference to Tribal Historic Preservation Officers (THPOs)
because MSGP coverage extends to Tribal lands and in recognition of the
central role Tribal governments play in the protection of historic
resources. Second, EPA is including guidance and a list of SHPO and
THPO addresses in new Addendum I to the MSGP to assist applicants with
the certification process for permit eligibility under this condition.
Facilities being transferred from the baseline permit which cannot
certify compliance with the NHPA requirements must submit individual
permit applications to the permitting authority in accordance with the
time frames set forth above for NOI submittal.
2. Endangered Species
The ESA of 1973 requires Federal Agencies such as EPA to insure, in
consultation with the U.S. Fish and Wildlife Service (FWS) and the
National Marine Fisheries Service (NMFS) (also known collectively as
the ``Services''), that any actions authorized, funded, or carried out
by the Agency (e.g., EPA issued NPDES permits authorizing discharges to
waters of the United States) are not likely to jeopardize the continued
existence of any Federally-listed endangered or threatened species or
adversely modify or destroy critical habitat of such species (see 16
U.S.C. 1536(a)(2), 50 CFR 402 and 40 CFR 122.49(c)). This consultation
resulted in a joint Service biological opinion issued by the FWS on
March 31, 1995, and by the NMFS on April 5, 1995, which concluded that
the issuance and operation of the MSGP was not likely to jeopardize the
existence of any listed endangered or threatened species, or result in
the adverse modification or destruction of any critical habitat. The
MSGP contains a number of conditions to protect listed species and
critical habitat. Permit coverage is only provided where:
The storm water discharge(s), and the construction of Best
Management Practices (BMPs) to control storm water runoff, are not
likely to adversely affect species identified in Addendum H of the
permit; or
The applicant's activity has received previous
authorization under the Endangered Species Act and established an
environmental baseline that is unchanged; or,
The applicant is implementing appropriate measures as
required by the Director to address adverse effects.
Addendum H of the permit contained a list of proposed and listed
endangered and threatened species that could be affected by the
discharges and measures to control pollutants in the discharges. The
Addendum also provided instructions to assist applicants in determining
whether they met the above eligibility requirements.
Because EPA determined that this permit modification is an action
that may affect listed endangered and threatened species, EPA
reinitiated ESA Sec. 7 consultation on July 16, 1997. On April 24,
1998, the US Fish and Wildlife Service and on May 1, 1998, the National
Marine Fisheries Service provided written concurrences on EPA's
findings that this modification is not likely to result in adverse
effects to listed species or critical habitat.
As a result of this consultation and in response to public comments
on the modification, EPA has updated the species list in Addendum H to
include species that were listed or proposed for listing since the
Addendum H list was compiled on March 31, 1995. EPA has also decided to
expand the list to include all of the terrestrial (i.e., non-aquatic)
listed and proposed species in recognition that those species may be
impacted by permitted activities such as the construction and operation
of the BMPs. The Addendum H list will be updated on a regular basis and
an electronic copy of that list will be made available at the Office of
Wastewater Management website at ``http://www.epa.gov/owm''.
Information on the availability of an electronic list is also being
added to the Addendum H instructions. Addendum H, updated as of July 8,
1998, has been attached in Section VII of today's final MSGP
modification.
EPA is not changing any other ESA-related conditions in this
modification because it believes that the current permit conditions
have been successful in ensuring the protection of listed and proposed
species and critical habitat.
To be eligible for coverage under the MSGP, facilities which are
being transferred from the baseline permit must review the list of
species and their locations which are contained in the updated Addendum
H of the MSGP and which are described in the instructions for
completing the application requirements under this permit. If an
applicant determines that none of the species identified in the
Addendum are found in the county in which the facility is located, then
there is no likelihood of an adverse effect and they are eligible for
permit coverage. Applicants must then certify that their discharges,
and the construction of storm water BMPs, are not likely to adversely
affect species and will be granted MSGP permit coverage 48 hours
[[Page 52438]]
after the date of the postmark on the envelope used to mail the NOI
form, provided there are no other factors limiting permit eligibility.
If species identified in Addendum H are found to be located in the
same county as the facility seeking MSGP coverage, then the applicant
must determine whether the species are in proximity to the storm water
discharges at the facility, or any BMPs to be constructed to control
storm water runoff. A species is in proximity to a storm water
discharge when the species is located in the path or down gradient area
through which or over which point source storm water flows from
industrial activities to the point of discharge into the receiving
water, and once discharged into the receiving water, in the immediate
vicinity of, or nearby, the discharge point. A species is also in
proximity if a species is located in the area of a site where storm
water BMPs are planned to be constructed. If an applicant determines
there are no species in proximity to the storm water discharge, or the
BMPs to be constructed, then there is no likelihood of adversely
affecting the species and the applicant is eligible for permit
coverage.
If species are in proximity to the storm water discharges or areas
of BMP construction, as long as they have been considered as part of a
previous ESA authorization of the applicant's activity, and the
environmental baseline established in that authorization is unchanged,
the applicant may be covered under the permit. The environmental
baseline generally includes the past and present impacts of all
Federal, state and private actions that were occurring at the time the
initial NPDES authorization and current ESA section 7 action by EPA was
taken. Therefore, if a permit applicant has received previous
authorization and nothing has changed or been added to the
environmental baseline established in the previous authorization, then
coverage under this permit will be provided.
In the absence of such previous authorization, if species
identified in Addendum H are in proximity to the discharges or
construction areas for BMPs, then the applicant must determine whether
there is any likely adverse effect upon the species. This is done by
the applicant conducting a further examination or investigation, or an
alternative procedure, as described in the instructions in Addendum H
of the permit. If the applicant determines that there is no likely
adverse effect upon the species, then the applicant is eligible for
permit coverage. If the applicant determines that there likely is, or
will likely be an adverse effect, then the applicant is not eligible
for MSGP coverage.
All dischargers applying for coverage under the MSGP must provide
in the application information on the Notice of Intent form: (1) A
determination as to whether there are any species identified in
Addendum H in proximity to the storm water discharges and BMP
construction areas, and (2) a certification that their storm water
discharges and the construction of BMPs to control storm water are not
likely to adversely affect species identified in Addendum H, or are
otherwise eligible for coverage due to a previous authorization under
the ESA. Coverage is contingent upon the applicant's providing truthful
information concerning certification and abiding by any conditions
imposed by the permit.
Dischargers (including those being transferred to the MSGP from the
baseline permit) who are not able to determine whether there will be
any adverse effect on species, cannot sign the certification to gain
coverage under the MSGP and must apply to EPA for an individual NPDES
storm water permit. The deadlines for the individual applications are
the same as those given above for the NOIs for facilities transferred
from the baseline permit. As appropriate, EPA will conduct ESA section
7 consultation when issuing such individual permits.
Regardless of the above conditions, EPA may require that a
permittee apply for an individual NPDES permit on the basis of possible
adverse effects on species or critical habitats. Where there are
concerns that coverage for a particular discharger is not sufficiently
protective of listed species, the Services (as well as any other
interested parties) may petition EPA to require that the discharger
obtain an individual NPDES permit and conduct an individual section 7
consultation as appropriate.
In addition, the Assistant Administrator for Fisheries for the
National Oceanic and Atmospheric Administration, or his/her authorized
representative, or the U.S. Fish and Wildlife Service (as well as any
other interested parties) may petition EPA to require that a permittee
obtain an individual NPDES permit. The permittee is also required to
make the SWPPP, annual site compliance inspection report, or other
information available upon request to the Assistant Administrator for
Fisheries for the National Oceanic and Atmospheric Administration, or
his/her authorized representative, or the U.S. Fish and Wildlife
Service Regional Director, or his/her authorized representative.
These mechanisms allow for the broadest and most efficient coverage
for the permittee while still providing for the most efficient
protection of endangered species. They significantly reduce the number
of dischargers that must be considered individually and therefore allow
the Agency and the Services to focus their resources on those
discharges that are indeed likely to adversely affect listed species.
Straightforward mechanisms such as these allow applicants more
immediate access to permit coverage, and eliminates ``permit limbo''
for the greatest number of permitted discharges. At the same time it is
more protective of endangered species because it allows both agencies
to focus on the real problems, and thus, provide endangered species
protection in a more expeditious manner.
3. North American Industry Classification System
EPA recognizes that a new North American Industry Classification
System (NAICS) was recently adopted by the Office of Management and
Budget (62 FR 17288, April 9, 1997). NAICS replaces the 1987 standard
industrial classification (SIC) code system for the collection of
statistical economic data. However, the use of the new system for
nonstatistical purposes is optional. EPA considered the use of NAICS
for the modified multi-sector permit, but elected to retain the 1987
SIC code system since the storm water regulations (40 CFR
122.26(b)(14)) reference the existing system and this system has
generally proven to be adequate. EPA will address the new NAICS system
in future rule making.
B. Special Conditions
The MSGP includes certain special conditions which are similar to
corresponding conditions found in the baseline general permit. Except
for the requirements for co-located facilities (Section III.B.3 below),
permittees which have been operating under the baseline permit should
generally be familiar with these requirements already.
1. Non-storm Water Discharges
Non-storm water discharges are generally not authorized by either
the MSGP or the baseline permit. However, both permits do authorize a
list of minor non-storm discharges such as fire hydrant flushings,
potable water sources, routine external building washdown water,
uncontaminated ground water and certain other
[[Page 52439]]
discharges, provided the discharges are identified in the SWPPP and
appropriate pollution prevention measures are included for the
discharges. In addition, permittees should also check the sector-
specific SWPPP requirements in the MSGP for any additional requirements
pertaining to non-storm water requirements.
2. Releases of Reportable Quantities of Hazardous Substances and Oil
The MSGP and the baseline general permit include the same
conditions pertaining to releases of reportable quantities of hazardous
substances and oil. Such releases must be reported to the National
Response Center and the permitting authority, and the SWPPP must be
amended to prevent such discharges in the future.
3. Co-located Industrial Facilities
The MSGP includes a special condition pertaining to co-located
facilities which was not included in the baseline general permit (see
60 FR 50813). If an industrial plant includes co-located facilities
which fall into more than one sector of the MSGP, then the sector-
specific SWPPP and monitoring requirements for both sectors apply to
the plant. The baseline permit had required that when an industrial
plant includes facilities which fall into more than one monitoring
category, then the facility overall must comply with the monitoring
requirements of both categories. However, the baseline permit did not
include sector-specific BMP requirements. In addition, both the
baseline permit and the MSGP provide that if monitoring for the same
parameter is required for more than one category (or sector), then only
one sample analysis is required for that parameter.
C. SWPPP Requirements
Both the baseline general permit and the MSGP require that
permittees develop and implement SWPPPs to control the discharge of
pollutants in storm water discharges. The SWPPPs required by the
baseline permit included various generic BMPs for all categories of
facilities covered by the permit. The following is a summary of the
requirements:
Pollution Prevention Team--the SWPPP must identify the
individuals who are responsible for development and implementation of
the SWPPP.
Site Evaluation--the SWPPP must include a map of the
facility and an assessment of the potential sources of storm water
pollution at the facility.
Generic BMPs including good housekeeping, preventive
maintenance, spill prevention and response, employee training, record
keeping, non-storm water discharge evaluation, erosion control measures
and storm water management measures as appropriate.
Comprehensive site inspection/compliance evaluation.
Special requirements for Emergency Planning and Community
Right to Know Act (EPCRA) Section 313 facilities.
The baseline general permit required that covered facilities
develop their SWPPPs no later than April 1, 1993, and come into
compliance with their SWPPPs by October 1, 1993. The MSGP (as amended
on February 9, 1996, 61 FR 5248) required that covered facilities
develop and implement their SWPPPs by September 25, 1996. However, the
MSGP also allows up to 3 years after permit finalization (i.e., no
later than September 29, 1998) for completion of control measures
identified in the SWPPP which involve construction.
The SWPPP which is required by the MSGP includes the same basic
BMPs which are found in the baseline general permit and also sector-
specific BMPs which are unique to the types of facilities in the
various sectors. As such, the SWPPPs which have been developed by
facilities which are currently operating under the baseline permit
should already include the basic requirements of the MSGP. However,
facilities which are transferred to the MSGP from the baseline permit
will have to review the sector-specific BMP requirements of the MSGP
and, as needed, upgrade their SWPPPs to comply with the requirements of
the MSGP. Appendix B to this fact sheet summarizes the sector-specific
requirements of the MSGP, including sector-specific SWPPP requirements,
monitoring requirements (with a comparison to baseline permit
requirements), numeric effluent limitations and inspection
requirements. A more detailed description can be found in Section VIII
of the September 29, 1995 fact sheet.
1. Deadline for SWPPP Revision and Implementation for Transferred
Facilities
EPA has added a special deadline to the MSGP for SWPPP revision and
implementation for transferred facilities (Part IV.A.10). The modified
MSGP requires SWPPP modification and implementation within 180 days
after the effective date of the MSGP modification. However, to
implement control measures involving construction, transferred
facilities have until October 1, 2000, which provides approximately the
same amount of time for implementing constructed BMPs as the original
MSGP. During the time period prior to SWPPP upgrade, the existing
requirements of the baseline permit apply and are incorporated into the
MSGP.
2. Special Requirements for Facilities Subject to EPCRA Section 313
Requirements
The MSGP includes the same special BMP requirements for facilities
subject to the reporting requirements of Section 313 of the EPCRA as
are found in the baseline general permit. Both permits require certain
additional BMPs for facilities which are required to report for ``water
priority chemicals.'' However, the list of such chemicals in the MSGP
(Addendum F of the MSGP) differs somewhat from the list in the baseline
permit due to changes in EPCRA reporting requirements which occurred
subsequent to the issuance of the baseline permit. As such, facilities
transferring to the MSGP should check the MSGP's list of ``water
priorities chemicals'' to determine whether the special EPCRA
requirements would apply.
The baseline permit also requires that the SWPPP for facilities
subject to EPCRA Section 313 be certified by a professional engineer
every 3 years. However, the MSGP only requires certification in
accordance with the regular signatory requirements of the permit, i.e.,
by a responsible corporate official.
The MSGP also provides an exemption from the EPCRA Section 313
requirements for situations where an operator certifies that all water
priority chemicals which are handled and/or stored on-site are only in
gaseous or non-soluble liquid or solid forms (at atmospheric pressure
and temperature). This exemption was not included in the baseline
permit, and some facilities may be eligible for this exemption upon
transfer from the baseline permit to the MSGP.
D. Monitoring and Reporting Requirements
Both the baseline general permit and the MSGP include analytical
storm water monitoring requirements for certain categories of
dischargers. However, the requirements differ somewhat with regard to
the parameters for which sampling and analysis are required, and the
industrial categories which are affected. In addition, the MSGP (Sector
M) does not include the provision in the baseline permit for auto
recyclers that monitoring only be required for facilities above a
certain
[[Page 52440]]
size. The group application monitoring data did not support such an
exemption.
Appendix B to this fact sheet summarizes the monitoring
requirements of the MSGP, and the differences from the baseline permit.
Additional information can be found in the fact sheets accompanying the
issuance of the baseline permit (see 57 FR 41248) and the MSGP (see 60
FR 50822). Facilities which are transferred to the MSGP from the
baseline permit are required to comply with the requirements of the
MSGP. The key differences are discussed below:
1. Sampling Schedule
The MSGP differs from the baseline permit with regards to the
schedule for analytical monitoring. The baseline permit had required
monitoring for certain facilities once or twice each year during the
term of the permit. The MSGP, however, requires monitoring quarterly,
as appropriate, during years two and four of the term of the permit.
For purposes of this monitoring, year two runs from October 1, 1996,
through September 30, 1997. For transferred facilities and other
dischargers obtaining MSGP coverage after September 30, 1997 (i.e., new
dischargers, existing unpermitted dischargers and dischargers
transitioning industrial storm water discharge permit coverage from an
individually drafted NPDES permit to the MSGP), monitoring will only be
required in year four (October 1, 1998, through September 30, 1999)
since year two has already passed.
Also, as discussed below in Section III.E, both the baseline permit
and the MSGP authorize certain discharges subject to numeric effluent
limitations. Section III.E discusses the limits, and the sampling and
reporting requirements.
2. Sample Type
The baseline general permit required grab and composite sampling
for most parameters. As an alternative, the baseline permit also
provided that one grab sample may be taken from a holding pond with a
retention period greater than 24 hours. The requirements of the MSGP,
however, have been simplified in that only a grab sample is required
for all sectors except Sector S (air transportation) where grab and
composite samples are required. Both the baseline permit and MSGP
require that the grab sample be taken within the first 30 minutes of
the discharge, unless this is impractical, in which case sampling is
required within the first hour of discharge.
3. Quarterly Visual Examination Requirements of the MSGP
The MSGP requires quarterly visual examinations of storm water
discharges for all sectors except Sector S, which covers air
transportation. A full description of the requirements for the visual
examinations is found in Section VI.E.8 of the fact sheet accompanying
the issuance of the MSGP. Basically, the MSGP requires that grab
samples of storm water discharges be taken and examined visually for
the presence of color, odor, clarity, floating solids, settled solids,
suspended solids, foam, oil sheen or other obvious indicators of storm
water pollution. The grab samples must be taken within the first 30
minutes after storm water discharges begin, or as soon as practicable,
but not longer than 1 hour after discharges begin. The sampling must be
conducted quarterly during the following time periods: January-March,
April-June, July-September and October-December of each year. The
reports summarizing these quarterly visual storm water examinations
must be maintained on-site with the SWPPP.
The baseline general permit did not include requirements for visual
examinations and facilities which are transferred to the MSGP will have
to comply with these additional sampling requirements. For transferred
facilities, these sampling requirements would begin in the first full
calendar quarter of coverage of the MSGP. EPA believes that this type
of sampling provides an inexpensive means for permittees to quickly
assess the effectiveness of their SWPPPs and make any necessary
modifications to address the results of the visual examinations.
4. Exemptions from Analytical Monitoring
Both the MSGP and the baseline general permit include certain
provisions for exemptions from analytical monitoring. Both permits
provide that facilities need not monitor if they certify that no
significant materials or industrial activities are exposed to storm
water. For the MSGP, however, the certification is on a pollutant-by-
pollutant, outfall-by-outfall basis; i.e., if there are no exposed
sources of a particular pollutant, then monitoring for that pollutant
at that outfall does not need to be conducted. For the baseline permit,
monitoring must be conducted for the entire suite of pollutants
required by the permit if any industrial materials or activities are
exposed.
The MSGP also includes an exemption from monitoring (again on a
pollutant-by-pollutant basis) in the fourth year of the permit if the
monitoring results of the second year are below certain benchmark
values which are found below in Table 3:
Table 3.--Parameter Benchmark Values
------------------------------------------------------------------------
Parameter name Benchmark level Source
------------------------------------------------------------------------
Biochemical Oxygen Demand(5)... 30 mg/L................... 4
Chemical Oxygen Demand......... 120 mg/L.................. 5
Total Suspended Solids......... 100 mg/L.................. 7
Oil and Grease................. 15 mg/L................... 8
Nitrate + Nitrite Nitrogen..... 0.68 mg/L................. 7
Total Phosphorus............... 2.0 mg/L.................. 6
pH............................. 6.0-9.0 s.u............... 4
Acrylonitrile (c).............. 7.55 mg/L................. 2
Aluminum, Total (pH 6.5-9)..... 0.75 mg/L................. 1
Ammonia........................ 19 mg/L................... 1
Antimony, Total................ 0.636 mg/L................ 9
Arsenic, Total (c)............. 0.16854 mg/L.............. 9
Benzene........................ 0.01 mg/L................. 10
Beryllium, Total (c)........... 0.13 mg/L................. 2
Butylbenzyl Phthalate.......... 3 mg/L.................... 3
Cadmium, Total (H)............. 0.0159 mg/L............... 9
Chloride....................... 860 mg/L.................. 1
Copper, Total (H).............. 0.0636 mg/L............... 9
[[Page 52441]]
Dimethyl Phthalate............. 1.0 mg/L.................. 11
Ethylbenzene................... 3.1 mg/L.................. 3
Fluoranthene................... 0.042 mg/L................ 3
Fluoride....................... 1.8 mg/L.................. 6
Iron, Total.................... 1.0 mg/L.................. 12
Lead, Total (H)................ 0.0816 mg/L............... 1
Manganese...................... 1.0 mg/L.................. 13
Mercury, Total................. 0.0024 mg/L............... 1
Nickel, Total (H).............. 1.417 mg/L................ 1
PCB-1016 (c)................... 0.000127 mg/L............. 9
PCB-1221 (c)................... 0.10 mg/L................. 10
PCB-1232 (c)................... 0.000318 mg/L............. 9
PCB-1242 (c)................... 0.00020 mg/L.............. 10
PCB-1248 (c)................... 0.002544 mg/L............. 9
PCB-1254 (c)................... 0.10 mg/L................. 10
PCB-1260 (c)................... 0.000477 mg/L............. 9
Phenols, Total................. 1.0 mg/L.................. 11
Pyrene (PAH,c)................. 0.01 mg/L................. 10
Selenium, Total (*)............ 0.2385 mg/L............... 9
Silver, Total (H).............. 0.0318 mg/L............... 9
Toluene........................ 10.0 mg/L................. 3
Trichloroethylene (c).......... 0.0027 mg/L............... 3
Zinc, Total (H)................ 0.117 mg/L................ 1
------------------------------------------------------------------------
Sources
1. ``EPA Recommended Ambient Water Quality Criteria.'' Acute Aquatic
Life Freshwater
2. ``EPA Recommended Ambient Water Quality Criteria.'' LOEL Acute
Freshwater
3. ``EPA Recommended Ambient Water Quality Criteria.'' Human Health
Criteria for Consumption of Water and Organisms
4. Secondary Treatment Regulations (40 CFR 133)
5. Factor of 4 times BOD5 concentration--North Carolina benchmark
6. North Carolina storm water benchmark derived from NC Water
Quality Standards
7. National Urban Runoff Program (NURP) median concentration
8. Median concentration of Storm Water Effluent Limitation Guideline
(40 CFR Part 419)
9. Minimum Level (ML) based upon highest Method Detection Limit
(MDL) times a factor of 3.18
10. Laboratory derived Minimum Level (ML)
11. Discharge limitations and compliance data
12. ``EPA Recommended Ambient Water Quality Criteria.'' Chronic
Aquatic Life Freshwater
13. Colorado--Chronic Aquatic Life Freshwater--Water Quality
Criteria
Notes
(*) Limit established for oil and gas exploration and production
facilities only.
(c) carcinogen
(H) hardness dependent
(PAH) Polynuclear Aromatic Hydrocarbon
Assumptions
Receiving water temperature--20 C
Receiving water pH--7.8
Receiving water hardness CaCO3 100 mg/L
Receiving water salinity 20 g/kg
Acute to Chronic Ratio (ACR)--10
Note that the benchmark value for total mercury listed above is
correctly listed as 0.0024 mg/L. The benchmark value for total mercury
in the original publication of the MSGP (60 FR 50826) had been
incorrectly listed as 10.0024 mg/L. In addition, as further discussed
in EPA's notice of technical correction of February 9, 1996 (61 FR
5248), the benchmark for zinc is correctly listed above as 0.117 mg/l
rather than 0.065 mg/l which was an error in the original MSGP.
EPA believes that monitoring results below these benchmarks
indicate that a generally effective SWPPP is being implemented at a
facility, and that further monitoring should not be required. The
exemption also provides an incentive for facilities to implement an
effective SWPPP which will reduce pollutant discharges.
The baseline permit required continued analytical monitoring for
certain categories of facilities throughout the term of the permit
regardless of sampling results. For facilities which are transferred to
the MSGP from the baseline industrial permit, monitoring is not
required in year four for particular pollutants if the average of the
two most recent monitoring results conducted for the baseline permit
are below the benchmarks. However, if monitoring was not conducted for
the appropriate pollutants, then the exemption would not be available.
In addition, the exemption would not be available if the industrial
activities at a facility have changed to the extent that the most
recent monitoring results do not reflect discharges from current
activities.
It should also be pointed out that the monitoring exemption
discussed above based on the absence of exposure at a facility is
available in year 4 of the MSGP regardless of past monitoring results.
This exemption is available for facilities already covered by the MSGP
and those to be transferred to the MSGP from the baseline permit. EPA
believes that the exemption provides an incentive for facilities to
eliminate exposure of materials and activities to storm water, thereby
reducing pollutant discharges. We should also point out, however, that
the discharges discussed in Section III.E below which are subject to
numeric effluent limitations are not eligible for any of the exemptions
from monitoring.
5. Reporting Requirements
The baseline permit required annual reporting of analytical
monitoring results for those facilities subject to semi-annual
monitoring. Facilities which are subject to annual monitoring were
required to retain the results on-site. The MSGP requires that
monitoring results be submitted to the permitting authority at the end
of each year in which sampling is required (postmarked by March 31 of
the year following the monitoring period, e.g., by March 31, 2000, for
the year four monitoring period). The results of the quarterly visual
examinations need not be
[[Page 52442]]
submitted, but must be retained on-site in the SWPPP.
E. Numeric Effluent Limitations
The MSGP includes the same numeric effluent limitations for coal
pile runoff as were found in the baseline general permit. These limits
are: (1) maximum of 50 mg/L for total suspended solids (TSS) and a pH
range of 6-9 standard units. Any untreated overflow from facilities
designed, constructed and operated to treat the runoff associated with
a 10-year, 24-hour rainfall event is not subject to the 50 mg/L limit
for TSS. Dischargers previously covered under the baseline general
permit must be compliant with this limitation upon submittal of the NOI
for coverage under MSGP.
The baseline general permit did not authorize storm water
discharges subject to numeric effluent limitation guidelines (ELGs).
The MSGP, however, does authorize certain storm water discharges
subject to ELGs including the coal pile runoff at steam electric power
plants, and for the following categories: Phosphate fertilizer
manufacturing (40 CFR part 418), asphalt paving and roofing emulsions
(40 CFR part 443), and cement manufacturing materials storage pile
runoff (40 CFR part 411). In addition, the modified MSGP authorizes
mine dewatering discharges from construction sand and gravel,
industrial sand, and crushed stone facilities (40 CFR Part 436) in EPA
Regions I, II, VI, X and Arizona. These numeric effluent limitations
can be found in Appendix B to this fact sheet.
The baseline permit required semi-annual monitoring (with annual
reporting) of coal pile runoff. However, the MSGP only requires annual
monitoring for all of the discharges subject to numeric effluent limits
(except mine dewatering discharges in Sector J where the monitoring
frequency is quarterly). The annual monitoring periods run from October
1 through September 30 of each year, and reporting is required by
November 30 of each year. The quarterly monitoring results are due no
later than the last day of the month following the collection of the
sample.
F. Miscellaneous Permitting Actions
In today's notice, EPA has also made the following limited specific
changes to the MSGP as published on September 29, 1995 (60 FR 50804):
(1) authorization of mine dewatering discharges from construction sand
and gravel, industrial sand, and crushed stone mines in EPA Regions I,
II and X; (2) inclusion in Sector A of the MSGP of the effluent
limitation guideline in 40 CFR Part 429 Subpart I for discharges
resulting from spray down of lumber and wood products in storage yards
(wet decking); (3) clarification that Sectors X and AA authorize
discharges from all facilities in major SIC groups 27 and 34
respectively; and (4) addition of new sector (Sector AD) to the MSGP to
authorize discharges from Phase I facilities which may not fall into
one of the sectors of the modified MSGP, and selected Phase II
discharges which are designated for permitting in accordance with 40
CFR 122.26(g)(1)(i). These are discussed below.
1. Coverage of Mine Dewatering Discharges in EPA Regions I, II and X
Sector J of the original MSGP authorized mine dewatering discharges
composed entirely of storm water or ground water seepage from
construction sand and gravel, industrial sand and crushed stone mines
in EPA Region VI and Arizona. These discharges are subject to effluent
limitations guidelines found at 40 CFR Part 436, Subparts B, C and D.
An individual permit or an alternate general permit was needed for
these types of discharges in areas other than Region VI and Arizona.
For increased permitting flexibility, today's modification extends this
authorization to facilities in the areas of EPA Regions I, II and X
where EPA is the NPDES regulating authority (see ``Areas of Coverage''
at the beginning of the Final Permit Modifications section of this
notice to identify specific areas in these Regions where the
modifications apply). This action avoids the need to issue individual
NPDES permits, or an alternate general permit, for discharges in these
areas. As discussed in the Response to Public Comments found in
Appendix A of this Fact Sheet, today's final action includes EPA Region
I which increased the affected area beyond that which was proposed by
the Agency on July 11, 1997.
2. Discharges Resulting From Spray Down of Lumber and Wood Products in
Storage Yards in Sector A
The MSGP authorizes non-storm water discharges resulting from the
spray down of lumber and wood products in storage yards (wet decking),
provided that no chemical additives are used in the spray and no
chemicals are applied to the wood during storage. The MSGP, however,
inadvertently omitted the numerical effluent limitation guideline in 40
CFR part 429, Subpart I which applies to such discharges. Accordingly,
EPA has modified the MSGP to incorporate the applicable effluent
limitation guideline and appropriate monitoring requirements for
clarification.
The numerical limits which apply to these non-storm water
discharges are: there shall be no debris discharged and the pH shall
range from 6.0 to 9.0. The term ``debris'' refers to woody material
such as bark, twigs, branches, heartwood or sapwood that does not pass
through a 2.54 cm (1.0 inch) diameter round opening and is present in
the discharge from a wet storage facility. EPA has included these
effluent limitations and also a requirement for annual monitoring of
the discharges.
3. Clarification of Coverage in Sectors X and AA of the MSGP
Sectors X and AA of the MSGP contain narrative descriptions of
industrial activities, SIC code major group listings and specific four
digit SIC codes listings for which coverage would be available. These
three methods of describing the types of industry allowed coverage
under these two sectors has proven to be confusing and EPA is now
clarifying the coverage of these two sectors in this modification.
Sector X was intended by EPA to cover all industry in major SIC
group 27 (printing, publishing and allied industries), and Sector AA
was intended to cover all industry in major SIC group 34. EPA has been
accepting NOIs from all facilities within these two major SIC groups,
regardless of the four digit SIC code listings, which mistakenly, have
been interpreted to be more restrictive. Through this clarification,
EPA wants to make it clear that all qualifying industries in these two
major groups can make use of the MSGP.
4. Addition of Sector AD to the MSGP
EPA has also added another sector to the MSGP (Sector AD) to cover
discharges from Phase I facilities which may not fall into one of the
sectors of the final modified MSGP, and to provide a readily available
means for covering many of the Phase II storm water facilities which
are designated for permitting prior to the permit application deadline
for Phase II sources of August 7, 2001. As discussed earlier, EPA has
modified the MSGP to include all facilities which were authorized under
the baseline general permit, but excluded from the MSGP. Although EPA
believes that all such previously excluded facilities have been
identified and included in the final modified MSGP, Sector AD has been
added to cover any inadvertent omissions.
For Phase II storm water sources, NPDES regulations at 40 CFR
122.26(g)(1)(i) provide that permit applications may be required within
180
[[Page 52443]]
days of notice for discharges which contribute to a violation of a
water quality standard, or are determined to be significant sources of
pollutants. For discharges other than municipal separate storm sewer
discharges, 40 CFR 122.26(g)(2) provides that individual permit
applications may be required in accordance with 40 CFR 122.26(c)(1), or
an NOI under a general permit may be required. Sector AD provides a
means through which general permit coverage may be obtained for many
designated Phase II facilities and as such, facilitates implementation
of the requirements of 40 CFR 122.26(g)(1)(i). However, for cases where
Sector AD is inappropriate, individual permits or an alternate general
permit are required. In addition, Part I.B.3.f of the MSGP does not
authorize coverage for discharges which may be contributing to a
violation of a water quality standard. As such, for discharges
permitted under 40 CFR 122.26(g)(1)(i), Sector AD could only be used
for discharges which are determined to be a significant source of
pollutants.
Sector AD is added in Part XI.AD of the MSGP. The SWPPP
requirements for this sector are the same as in the baseline general
permit to ensure flexibility given the broad universe of potential
types of facilities which may be covered. Also, no analytical
monitoring requirements are included for the new sector; however,
quarterly visual examinations are required as in most other sectors. In
addition, the requirements common to all sectors of the MSGP which are
set forth in Parts I-X and XII of the MSGP also apply to Sector AD.
5. Modification of Inspection Requirements for Inactive Oil and Gas
Extraction Facilities in Sector I
As discussed further in the Summary of Responses to Public
Comments, EPA has modified the inspection requirements for inactive oil
and gas extraction facilities which are remotely located and unstaffed
(within major SIC group 13) covered by Sector I. The modification
provides that only annual inspections are required (rather than
quarterly or semi-annual inspections) for inactive facilities which are
remotely located and unstaffed. This modification is being made in
response to concerns regarding the practicality of quarterly or semi-
annual inspections for inactive, unstaffed facilities, particularly
those in remote areas. Sector J (for mineral mining and processing)
also requires only annual inspections for inactive facilities and EPA
believes that this requirement is appropriate for inactive oil and gas
extraction facilities which are remotely located and unstaffed as well.
G. Response to National Mining Association Concerning Sector G of the
MSGP
As discussed above, the MSGP authorizes selected storm water
discharges subject to ELGs. However, Sector G for the ore mining and
dressing industry is not among the sectors for which the MSGP
authorizes such discharges. In section VIII.G of the fact sheet for the
MSGP, EPA provided a table (Table G-4) regarding the applicability of
ELGs to storm water discharges from ore mining operations. On October
10, 1995, the National Mining Association (NMA) challenged the
interpretations of the ELGs contained in Table G-4, particularly the
interpretation of the term ``mine drainage'' to include runoff from
waste rock and overburden represented by the Table (National Mining
Association v. EPA, No. 95-3519 (8th Cir.)).
On October 22, 1997 (62 FR 54950), EPA proposed a clarification to
the interpretation in Table G-4 and modification of Sector G of the
MSGP in response to the challenge from the NMA. On August 7, 1998, EPA
published final revisions to Sector G in the Federal Register which
modified Table G-4 to only include those specific storm water
discharges which are authorized by the MSGP and are not subject to
ELGs. Monitoring requirements for storm water discharges from waste
rock and overburden piles were also included in the final revisions.
H. Regional Offices
Notice of Intent Address. Notices of Intent to be authorized to
discharge under the MSGP should be sent to: Storm Water Notice of
Intent (4203), USEPA, 401 M Street, S.W., Washington, DC 20460.
For further information, please call the appropriate EPA Regional
storm water contacts listed below:
ME, MA, NH, Indian country in CT, MA, ME, RI, and Federal
Facilities in VT
EPA Region I, Office of Ecosystem Protection, JFK Federal Building
(CMU), Boston, MA 02203, Contact: Thelma Hamilton (617) 565-3569
PR
U.S. Environmental Protection Agency, Caribbean Environmental
Protection Division, Centro Europa Building, 1492 Ponce de Leon Avenue,
Suite 417 Santurce, Puerto Rico 00907-4127 Contact: Sergio Bosques
(787) 729-6951
DC and Federal Facilities in DE
EPA Region III, Water Protection Division, (3WP13), Storm Water
Staff, 841 Chestnut Building, Philadelphia, PA 19107, Contact: Cheryl
Atkinson (215) 566-3392
FL and Indian country in FL
EPA Region IV, Water Management Division, Surface Water Permits
Section (SWPFB), 61 Forsyth Street, SW, Atlanta, GA 30303-3104,
Contact: Floyd Wellborn (404) 562-9296
NM and TX; Indian country in LA, OK, TX and NM (Except Navajo
and Ute Mountain Reservation Lands); and oil and gas exploration and
production related industries, and pipeline operations (which under
State law are regulated by the Oklahoma Corporation Commission and not
the Oklahoma Department of Environmental Quality).
EPA Region VI, NPDES Permits Section (6WQ-PP), 1445 Ross Avenue,
Dallas, TX 75202-2733, Contact: Brian Burgess (214) 665-7534
AZ, American Samoa, Commonwealth of Northern Mariana Islands,
Johnston Atoll, Guam, Midway Island and Wake Island; all Indian country
in AZ, CA, and NV; those portions of the Duck Valley, Fort McDermitt
and Goshute Reservations that are outside NV; those portions of the
Navajo Reservation that are outside AZ.
EPA Region IX, Water Management Division, (WTR-5), Storm Water
Staff, 75 Hawthorne Street, San Francisco, CA 94105, Contact: Eugene
Bromley (415) 744-1906
AK and ID; Indian country in AK, ID (except the Duck Valley
Reservation), OR (except the Fort McDermitt Reservation), and WA; and
Federal facilities in WA
EPA Region X, Office of Water (OW-130), Storm Water Staff, 1200
Sixth Avenue, Seattle, WA 98101, Contact: Joe Wallace (206) 553-8399
IV. Cost Estimates
Cost estimates for the MSGP were included with the final fact sheet
accompanying the issuance of the MSGP on September 29, 1995 and are not
being repeated here. However, costs for the facilities being
transferred to the MSGP from the baseline permit are expected to be
lower than for those initially applying for coverage under the MSGP
since the transferred facilities will already have responded to some of
the requirements of the MSGP.
[[Page 52444]]
V. Economic Impact (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 OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may have an annual effect
on the economy of $100 million or more or adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities; create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or 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 modified general permit is not a
``significant regulatory action'' under the terms of Executive Order
12866 and is therefore not subject to formal OMB review prior to
proposal.
VI. Unfunded Mandates Reform Act
Section 201 of the Unfunded Mandates Reform Act (UMRA), P.L. 104-4,
generally requires Federal agencies to assess the effects of their
``regulatory actions'' on State, local, and tribal governments and the
private sector. UMRA uses the term ``regulatory actions'' to refer to
regulations. (See, e.g., UMRA section 201, ``Each agency shall * * *
assess the effects of Federal regulatory actions * * * (other than to
the extent that such regulations incorporate requirements specifically
set forth in law)'' (emphasis added)). UMRA section 102 defines
``regulation'' by reference to 2 U.S.C. 658 which in turn defines
``regulation'' and ``rule'' by reference to section 601(2) of the
Regulatory Flexibility Act (RFA). That section of the RFA defines
``rule'' as ``any rule for which the agency publishes a notice of
proposed rulemaking pursuant to section 553(b) of [the Administrative
Procedure Act (APA)], or any other law * * *''
As discussed in the RFA section of this notice, NPDES general
permits are not ``rules'' under the APA and thus not subject to the APA
requirement to publish a notice of proposed rulemaking. NPDES general
permits are also not subject to such a requirement under the CWA. While
EPA publishes a notice to solicit public comment on draft general
permits, it does so pursuant to the CWA section 402(a) requirement to
provide ``an opportunity for a hearing.'' Thus, NPDES general permits
are not ``rules'' for RFA or UMRA purposes.
EPA has determined that the final modifications will not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local and Tribal governments, in the aggregate, or the
private sector in any one year.
The Agency also believes that the final modifications will not
significantly nor uniquely affect small governments. For UMRA purposes,
``small governments'' is defined by reference to the definition of
``small governmental jurisdiction'' under the RFA. (See UMRA section
102(1), referencing 2 U.S.C. 658, which references section 601(5) of
the RFA.) ``Small governmental jurisdiction'' means governments of
cities, counties, towns, etc., with a population of less than 50,000,
unless the agency establishes an alternative definition.
The final modifications also will not uniquely affect small
governments because compliance with the final permit conditions affects
small governments in the same manner as any other entities seeking
coverage under the modified permit.
VII. Paperwork Reduction Act
EPA has reviewed the requirements imposed on regulated facilities
resulting from the final permitting actions under the Paperwork
Reduction Act of 1980, 44 U.S.C. 3501 et seq. The information
collection requirements of the MSGP have already been approved in
previous submissions made for the NPDES permit program under the
provisions of the Clean Water Act.
VIII. Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., EPA is
required to prepare a Regulatory Flexibility Analysis to assess the
impact of rules on small entities. Under 5 U.S.C. 605(b), no Regulatory
Flexibility Analysis is required where the head of the Agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities.
The Agency has determined that the permit modification being
published today is not subject to the Regulatory Flexibility Act
(``RFA''). By its terms, the RFA only applies to rules subject to
notice-and-comment rulemaking requirements under the Administrative
Procedure Act (``APA'') or any other statute. Today's permit
modification is not subject to notice and comment requirements under
the APA or any other statute because the APA defines ``rules'' in a
manner that excludes permits. See APA section 551 (4), (6), and (8).
The APA distinguishes between agency action that is a ``rule'' and
agency action that is an ``order.'' An order is any final agency
disposition, including agency action in issuing licenses or permits, in
a matter other than rulemaking. Adjudication is the agency process for
formulating an order and rulemaking the process for formulating a rule.
The requirements of APA section 553 apply only to the issuance of
``rules.'' Informal adjudications, which typically include agency
process for issuing permits, are not rules and are not subject to the
rulemaking requirements of section 553(b). In the Agency's view, the
issuance by EPA of a license (in the form of an NPDES general permit)
that may apply to a large number of different dischargers does not
necessarily convert the permit issuance of the general permit from an
adjudication to rulemaking. The Agency has explained in further detail
its reasons for concluding that issuance of a general NPDES permit is
not subject to the RFA at 63 FR 7898 (February 17, 1998).
Today's final permit modification actions will provide small
entities the opportunity to obtain storm water permit coverage under
the MSGP, which was originally developed based on the group application
process. The group application information submitted to EPA provided a
basis for the development of storm water permit conditions tailored
specifically for each industry. Today's action expands applicability
provisions for some sectors so that permittees previously authorized
under the expired Baseline Industrial General Permit may be eligible
for authorization. Today's modifications also create a ``default''
category for permittees covered by the expired baseline permit where
there is no applicable or relevant industrial sector category in the
MSGP. The MSGP requirements were designed to minimize significant
administrative and economic impacts on small entities. Transfer of
permit coverage from the baseline permit to the MSGP should not have a
significant impact on industry in general. Moreover, the MSGP reduces a
significant burden on regulated sources of applying for individual
permits.
Part IX--Official Signatures
Accordingly, I hereby find consistent with the provisions of the
Regulatory
[[Page 52445]]
Flexibility Act, that these final permit modifications will not have a
significant impact on a substantial number of small entities.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: July 1, 1998.
John DeVillars,
Regional Administrator, Region 1.
Dated: August 26, 1998.
Jeanne M. Fox,
Regional Administrator, Region 2.
Dated: August 6, 1998.
Thomas Voltaggio,
Acting Regional Administrator, Region 3.
Dated: August 4, 1998.
Robert F. McGhee,
Acting Regional Administrator, Region 4.
Dated: July 20, 1998.
Gregg A. Cooke,
Regional Administrator, Region 6.
Dated: August 17, 1998.
Laura Yoshii,
Acting Regional Administrator, Region 9.
Dated: July 26, 1998.
Chuck Findley,
Acting Regional Administrator, Region 10.
X. Notice of Final MSGP for American Samoa and the Commonwealth of
the Northern Mariana Islands (CNMI)
The draft MSGP was proposed by EPA on November 19, 1993 (58 FR
61146), and American Samoa and the CNMI were proposed to be included
among the areas of coverage of the MSGP. However, at the time of
issuance of the final MSGP for most areas (September 29, 1995), the
American Samoa EPA and the Division of Environmental Quality of CNMI
had not completed their review of the MSGP for certification purposes
pursuant to Section 401 of the CWA. As such, EPA did not issue the MSGP
for American Samoa and CNMI at that time.
On September 5, 1997 and October 6, 1997, respectively, the CNMI
Division of Environmental Quality and the American Samoa EPA provided
their 401 certifications for the MSGP (including today's
modifications). The certifications also include certain special
conditions necessary to ensure compliance with the CWA. Today, EPA is
providing notice of the issuance of the final MSGP for American Samoa
and CNMI, including the special conditions which were required. The
area of coverage of the MSGP is being revised today to include American
Samoa and CNMI among the areas for which discharges may be authorized.
The other modifications of the MSGP which are discussed elsewhere in
this fact sheet also apply to the MSGP issued for American Samoa and
CNMI. The 401 certification conditions required by American Samoa and
CNMI are found in Part XII of today's revised MSGP.
The MSGP includes industry-specific sections that describe the
storm water pollution prevention plan requirements, numeric effluent
limitations and monitoring requirements for the specific industries.
These industry-specific sections are contained in Part XI of the MSGP
and are described in Part VIII of the fact sheet published on September
29, 1995. There are also a number of permit requirements that apply to
all industries which are found elsewhere in the MSGP and described in
the fact sheet.
Today's notice incorporates by reference the permit terms and
conditions set forth at 60 FR 51108-51255 published on September 29,
1995, and also incorporates by reference the technical corrections of
February 9, 1996 (61 FR 5251-5254) and February 20, 1996 (61 FR 6412).
These requirements may be found in Parts I through XI of the permit.
A. Contacts
Notices of Intent (NOIs) to be covered under the MSGP and Notices
of Termination (NOTs) to terminate coverage under the MSGP must be sent
to the Storm Water Notice of Intent Processing Center (see address
below). The complete administrative record for the MSGP is available
through the Water Docket MC-4101, Environmental Protection Agency, 401
M Street SW, Washington, D.C. 20460. A reasonable fee may be charged
for copying.
Notice of Intent Address. Notices of Intent to be authorized to
discharge under the MSGP should be sent to: NOI/NOT Processing Center
(4203), 401 M Street SW, Washington, D.C. 20460.
Address for Other Submittals. Other submittals of information
required under the MSGP for American Samoa and CNMI should be sent to
EPA, Region 9, Water Division (WTR-7), 75 Hawthorne Street, San
Francisco, CA 94105.
B. 401 Certification
Section 401 of the CWA provides that no Federal license or permit,
including NPDES permits, to conduct any activity that may result in any
discharge into navigable waters, shall be granted until the state in
which the discharge originates certifies that the discharge will comply
with the applicable provisions of Sections 301, 302, 303, 306 and 307
of the CWA.
For American Samoa, the following special conditions were included
with its 401 certification:
1. NOIs must be sent to the American Samoa EPA simultaneously with
submittal to EPA.
2. Storm water pollution prevention plans (SWPPPs) must be
submitted to the American Samoa EPA for review and approval. (Although
the American Samoa EPA did not specify a deadline for submittal, it is
presumed that submittal is required as soon as the SWPPP is completed.)
For CNMI, the following special conditions were included with its
401 certification:
1. NOIs submitted to the CNMI DEQ must be postmarked 7 days prior
to any storm water discharges.
2. The NOI which is submitted to CNMI must be accompanied by a
letter from the CNMI DEQ approving the SWPPP.
3. SWPPPs required by the permit must be submitted to the CNMI DEQ
for review and approval along with applicable fees associated with a
401 Water Quality Certification prior to submittal of an NOI to EPA and
the CNMI DEQ.
4. NOIs must be submitted to the CNMI DEQ and EPA Region 9 as well
as the regular NOI address in Washington, D.C.
The 401 certification requirements for American Samoa and CNMI are
added to Part XII of the MSGP in the section for EPA Region 9
requirements.
C. Deadlines
NOI Submittal. NOIs for facilities in CNMI must be submitted no
later than 90 days after today's date which is the effective date of
the permit. This is consistent with the time frame for NOI submittal of
the original MSGP issued on September 29, 1995. Although the NOI
deadline of the original MSGP was extended 90 additional days, EPA does
not believe this should be necessary in CNMI given the relatively small
number of facilities in CNMI. A special condition was added to the MSGP
(Part II.A.11) to clarify the deadline for NOI submittal for CNMI since
the baseline general permit was never issued for CNMI. Permittees in
CNMI will be requesting initial permit coverage under the MSGP rather
than transferring from the baseline permit to the MSGP.
Facilities in American Samoa transferring to the MSGP from the
baseline permit will also have 90 days to request coverage under the
MSGP, which is the same amount of time given to any other permittees
transferring to the MSGP.
SWPPP Preparation and Compliance. For facilities in CNMI,
preparation and compliance with SWPPPs must be completed no later than
270 days after
[[Page 52446]]
the date of today's MSGP issuance. This provides the same amount of
time that was provided in the original MSGP of September 29, 1995.
However, for BMPs involving construction, the deadline is October 1,
2000, which provides roughly the same amount of time as provided by the
original MSGP.
The expiration date for the MSGP for American Samoa and CNMI has
been set at October 1, 2000, which is the same expiration date for
areas covered by the September 29, 1995 MSGP. Although this results in
a permit term somewhat less than the usual five years, alignment of the
expiration dates will facilitate permit reissuance.
D. Paperwork Reduction Act
EPA has reviewed the requirements imposed on regulated facilities
in the final MSGP for American Samoa and CNMI under the Paperwork
Reduction Act of 1995, 44 U.S.C. 3501 et seq. The information
collection requirements in today's final notice for American Samoa and
CNMI have already been approved by the Office of Management and Budget
in previous submissions made for the NPDES permit program under the
provisions of the CWA.
E. Considerations Under Other Federal Laws
For the MSGP issued for American Samoa and CNMI by today's notice,
EPA is required to conduct and certify certain analyses under the
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., and the Unfunded
Mandates Reform Act, Pub. L. No. 104-4. By today's action, EPA adopts,
incorporates, and certifies the relevant findings under the Regulatory
Flexibility Act and the Unfunded Mandates Reform Act made in the
September 29, 1995 MSGP (and elsewhere in this fact sheet for today's
modifications of the MSGP) for the purposes of the MSGP issued for
American Samoa and CNMI.
F. Regulatory Flexibility Act Certification
Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., EPA is
required to prepare a Regulatory Flexibility Analysis to assess the
impact of rules on small entities. Under 5 U.S.C. 605(b), no Regulatory
Flexibility Analysis is required where the head of the Agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities.
Today's permit will provide any small entity the opportunity to
obtain storm water permit coverage as a result of the group application
process. Group applications provided small entities a mechanism to
reduce their permit application burden by grouping together with other
industrial facilities and submitting a common permit application with
reduced monitoring requirements and shared costs. The group application
information submitted to EPA provided a basis for the development of
storm water permit conditions tailored specifically for each industry.
The permit requirements have been designed to minimize significant
administrative and economic impacts on small entities and should not
have a significant impact on industry in general. Moreover, the permit
reduces a significant burden on regulated sources of applying for
individual permits.
Accordingly, I hereby certify consistent with 5 U.S.C. 605(b) that
this permit will not have a significant impact on a substantial number
of small entities.
Dated: July 18, 1998.
Laura Yoshii,
Acting Regional Administrator, Region 9.
Appendix A--Summary of Responses To Public Comments on the July 11,
1997, Proposal To Modify the MSGP and Terminate the Baseline
Industrial General Permit
The following discussion is a summary of the major issues
identified by EPA that were raised during the public comment period
regarding the proposal to modify the MSGP and terminate the Baseline
Industrial General Permit, along with EPA's response to each major
issue. This summary aggregates comments by similarity of the issues. A
comprehensive discussion of each comment that was raised is provided in
a separate document which is maintained by EPA as a part of the record
for these permitting actions.
Notice of Intent Comments
Several comments were received concerning the need for EPA to
streamline the permit process and reduce the administrative burden on
the regulated community for permittees that chose to remain under the
Baseline Industrial General Permit (BGP) after its expiration date.
Comments included the following: The procedure required by the BGP for
permittees to follow to obtain extended coverage beyond the permit's
expiration date was confusing and cumbersome (i.e., submission of a NOI
between August 1, 1997, and 2 days prior to the expiration date); the
submission of an NOI for extended coverage under the BGP, followed by
submission of another NOI at a later date to transition coverage to the
MSGP and submission of a Notice of Termination (NOT) to end BGP
coverage would be especially burdensome on companies with multiple
facilities; and, the timing of the MSGP permit modification with the
changeover from the expiring BGP to the MSGP was arbitrary and
therefore burdensome on the regulated community.
In response, EPA acknowledges that the permit process could have
been improved but doing so would have required that EPA draft, propose
and finalize a modification to Part VII.B of the BGP (i.e., Part VII.B
of the BGP requires that permittees submit a second NOI during the
period of August 1, 1997, through September 29, 1997, if they wish to
maintain permit coverage beyond the expiration date of October 1,
1997). This process may not have been completed in a timely manner
(i.e., before the permit's expiration date) and would have diverted
limited Agency resources from the more important task of modifying the
MSGP. Also, the submission of a NOT to end BGP coverage when a
permittee submits its NOI for transition to the MSGP is not a permit
requirement (see Part IX.A of the BGP), but does assist EPA with its
database management activities. Furthermore, under Part VII.B of the
MSGP (Continuation of the Expired Permit; 60 FR 51120), permittees are
not required to submit a second NOI to remain covered beyond the
expiration date of that permit. Another NOI would only have to be
submitted to obtain coverage under a new or alternate general permit.
One commenter suggested that EPA automatically extend permit
coverage for BGP permittees under the authority of the Administrative
Procedure Act (APA). Another commenter suggested that EPA provide
permittees with a ``post card'' type notice to submit instead of
another NOI to facilitate the process. Yet another commenter suggested
that EPA consider BGP permittees automatically extended after the
expiration date unless they specifically indicate an intention to
terminate permit coverage, or that the Agency will not take enforcement
action against any permittee that fails to submit a NOI to extend
permit coverage.
In response, EPA notes that Part VII.B of the BGP requires that
permittees submit a second NOI during the period of August 1, 1997,
through September 29, 1997, if they wish to maintain permit coverage
beyond the expiration date of October 1, 1997. Development and
distribution of a ``post card'' type notice for BGP permittees to
submit in lieu of a NOI would have conflicted with this permit
requirement. Furthermore, the NOI is an official
[[Page 52447]]
Agency form approved by the US Office of Management and Budget and is
required for storm water permittee or applicant use where directed by
permit conditions. To change these permit requirements and allow
automatic extensions or use of ``post card'' type notices as the
commenters suggested would have required that EPA draft, propose and
finalize a modification to the BGP. As mentioned above, this process
may not have been completed in a timely manner (i.e., before the
permit's expiration date) and would have diverted limited Agency
resources from the more important task of modifying the MSGP. To assist
permittees with understanding their options in view of the pending
expiration of the permit, EPA sent a letter to all BGP permittees in
August 1997 which described in detail their permitting options (i.e.,
submission of a NOI to either transition to the MSGP permit or remain
covered under the BGP past its expiration date). Finally, failure by a
BGP permittee to submit a NOI for extended coverage would be a permit
violation and may subject the permittee to potential enforcement
action.
Similar comments were received concerning the need for BGP
permittees to submit another NOI to transfer coverage to the MSGP, and
that EPA should do this automatically to reduce the administrative
burden on both permittees and the Agency. In response, EPA notes that
according to NPDES permit regulations found at 40 CFR 122.28(b)(2),
dischargers seeking coverage under a general permit such as the MSGP
must submit a Notice of Intent to EPA. Further, though the BGP and the
MSGP are similar, they are separate NPDES permits with specific
eligibility requirements and application procedures which must be
followed when applying for permit coverage. Applying for and receiving
permit coverage under one does not mean that a permittee has also
automatically received coverage under the other. This is especially
evident since there are specific questions and certification provisions
concerning the Endangered Species Act and the National Historic
Preservation Act on the current NOI form (OMB No. 2040-0086) which MSGP
applicants must respond to but not BGP applicants.
Several commenters were confused whether a statement in the
modification proposal (62 FR 37455) that BGP permittees were eligible
for voluntary transferral to the MSGP also applied to ``orphan''
facilities (i.e., BGP permittees who, prior to today's final MSGP
permit modification, were not eligible for transfer to the MSGP). In
response, EPA is providing clarification that the option to voluntarily
transfer to the MSGP from the BGP applied only to non-orphan facilities
since orphan facilities were not eligible for transfer to the MSGP at
the time of the publication of the proposed modifications (July 11,
1997) and only became eligible through today's final publication of the
modifications to the MSGP.
One commenter agreed with EPA's position to not modify the MSGP to
require the use of the new North American Industry Classification
System (NAICS) in lieu of the 1987 Standard Industrial Classification
(SIC) Manual which has been used by the MSGP since its original
publication in 1995. EPA agrees with the commenter's assertion that
switching to the new NAICS would create unnecessary confusion in the
MSGP's regulated community. Further, EPA believes that a revision to
the definition of ``storm water associated with industrial activity''
should be completed before any such permit modification is undertaken
since the definition, which is the first step in determining whether a
facility needs to apply for permit coverage, is currently based on the
SIC manual and not on the NAICS.
Several commenters suggested that EPA introduce (propose) the new
expanded NOI form developed by EPA in conjunction with the Urban Wet
Weather Flows Federal Advisory Committee for use by industrial storm
water dischargers. The commenters stated that the expanded NOI form
would require facilities to not only identify the receiving water body
as the current NOI form does, but also quantify storm water flows
thereby improving applicants' awareness of the actual effect their
storm water discharges have on water bodies. The expanded NOI form
would also require permittees to identify their storm water management
practices, something that is not required by the current NOI form. The
commenters stated that this would improve the applicants' awareness of
storm water pollution prevention as well as the myriad of practices
which can be used to decrease the discharge of pollutants. Furthermore,
the expanded NOI form would provide information which EPA and State
agencies could use to base resource allocations on by focusing on
potential problem facilities. Finally, the expanded form would vastly
increase citizen access to meaningful information, thereby improving
credibility of the program. The commenters argued that EPA should
employ these valuable tools in the permit modification rather than
delaying the benefits that the expanded NOI form would provide. In
response, EPA concurs with the commenters suggestions and will be
proposing the expanded NOI form for public comment in the near future.
However, the expanded NOI form has not yet been approved by the Office
of Management and Budget and is not ready for use in today's MSGP
modification.
Several commenters stated that the certification language contained
on the NOI should include a provision that the person signing the form
should not only certify ``To the best of my knowledge * * *'', but
should also make a reasonable investigation of the facts used to
complete the form. They also stated that ignorance should not be a
shield (from potential liability). In response, EPA believes that the
commenters are referring to Box 2 of the current NOI form which, as
stated in the box, is for MSGP applicants only. However, the provisions
contained in Box 1 apply to all people who sign and date the NOI. EPA
believes that the certification statement contained in Box 1
sufficiently addresses the commenters' concerns: ``I certify under
penalty of law that this document and all attachments were prepared
under my direction or supervision in accordance with a system designed
to assure that qualified personnel properly gather and evaluate the
information submitted. Based on my inquiry of the person or persons who
manage the system, or those persons directly responsible for gathering
the information, the information submitted is, to the best of my
knowledge, true, accurate, and complete. I am aware that there are
significant penalties for submitting false information, including the
possibility of fine and imprisonment for knowing violations.'' This
language comes from NPDES regulations at 40 CFR 122.22. Consequently,
no change to the current NOI form will be proposed. Also, EPA intends
to use the same language when proposing the expanded NOI form in the
near future.
Deadlines for Submitting Notices of Intent (NOIs) and for SWPPP
Compliance
The proposal of July 11, 1997, provided 30 days after the effective
date of the MSGP modification for NOI submittal for facilities
transferring to the MSGP from the baseline industrial permit. A 90 day
period after the effective date of the modification was proposed for
upgrading SWPPPs as necessary to comply with the provisions of the
MSGP, and facilities requiring BMP construction would be allowed up to
September 29, 1998. Several commenters argued that all three of these
time periods were too short, and
[[Page 52448]]
various extensions and justifications for the extensions were
submitted. Conversely, one commenter stated that the September 29,
1998, deadline for transitioning facilities to complete BMP
construction was unnecessary since any BMP construction required under
the Baseline Industrial General Permit, the predecessor to the MSGP,
supposedly would have already been completed. The commenter requested
that this time frame be shortened to 90 days from the effective date of
the permit.
Commenters had argued that 30 days for NOI submittal may be
inadequate due to the possible need to coordinate with other agencies
on matters such as the Endangered Species Act certification. A
commenter also noted that SWPPPs are sometimes prepared by consultants
and that adequate time is needed to hire a consultant and modify the
SWPPP. Other commenters also argued that more than 90 days would be
required due to the complexity of the requirements of the MSGP. In
addition, for BMPs involving construction, the proposed deadline of
September 29, 1998, would be inadequate due to factors such as the time
necessary for the planning and budgeting for the projects, as well as
the construction itself.
In response to these concerns, EPA has extended the deadlines are
follows: NOIs would be due 90 days after the effective date of the MSGP
modification; SWPPP revisions not involving construction would be due
180 days after the effective date of the MSGP modification; and SWPPP
revisions which involve construction would be required no later than
October 1, 2000, which is the expiration date of the MSGP. EPA believes
that the revised deadlines are appropriate and generally in line with
the recommendations of the commenters.
A commenter also noted that the proposed modification would require
that permittees ``begin implementation'' of their revised SWPPPs by the
required deadline. The commenter requested that EPA clarify that all
requirements of the modified SWPPPs must be in place and in operation
by the deadlines. In response, EPA believes that the words ``begin
implementation'' clearly indicate that the actual implementation of any
new BMPs in SWPPPs must commence (or be completed and in operation in
the case of BMPs involving construction) by the appropriate deadlines.
As such, no changes were made in response to this comment.
Other commenters expressed concern that the proposal of July 11,
1997, had not clarified that for facilities transferring to the MSGP
prior to its modification, SWPPPs must be in compliance with the
requirements of the MSGP at the time of NOI submittal. EPA agrees that
such a clarification would have been helpful. However, this is a moot
issue at this time since the MSGP has now been modified and hence no
additional discussion of this matter is required.
Is a New NOI Required if Operations Change at a Facility?
A commenter raised the question, in connection with eligibility
requirements of Sector AD of Part XI, if both a Notice of Termination
(NOT) and a new Notice of Intent (NOI) would need to be submitted if
conditions change at a facility covered by this sector such that the
facility falls into another sector.
In response, in order to reduce the paperwork burden on permittees
EPA does not require that updated NOIs be submitted for such changes.
Updated information concerning the type of facility can be provided
when the MSGP is reissued and the next NOI is submitted. The MSGP does,
however, require that permittees update their SWPPPs in response to
changes which occur at a facility. In addition, if changes occur at a
facility such that the facility would fall into a different sector or
an additional sector, the monitoring requirements of the other
sector(s) would apply.
Must Permittees Submit Notices of Intent (NOIs) to Operators of
Municipal Separate Storm Sewer Systems (MS4s)?
A commenter noted that the July 11, 1997, notice did not address
the question of whether facilities must submit NOIs to the operator of
a large or medium MS4 in addition to EPA. The commenter requested
clarification of this issue.
Part II.D of the MSGP requires that facilities requesting coverage
under the MSGP also submit a copy of the NOI to the operator of a large
or medium MS4 if they discharge into the MS4. Part II.D of the MSGP is
not affected by this permit modification. Therefore, copies of NOIs
must be provided to large or medium MS4 operators.
Re-Publication of MSGP and Notice of Termination (NOT) Form
A commenter suggested that it may be necessary to re-published the
entire MSGP so that facilities can more easily evaluate which sectors
would apply to their facilities. Another commenter requested that the
NOT form be published with the final permit modification in addition to
the NOI form.
For the convenience of permittees, today's final modification
includes the NOT form along with the NOI form. However, EPA has not re-
published the entire MSGP due to its size and the fact that very little
of the MSGP has actually been modified. The original MSGP can be found
at 60 FR 50804. Copies can be obtained by calling the Region 2 and
Region 6 storm water permitting hotline at 1-800-245-6510, or the EPA
Office of Water Resources Center at 202-260-7786.
Extending the Public Comment Period
Several commenters requested that the comment period be extended
given the potential effects on regulated facilities of the proposed
transfer of facilities to the MSGP from the BGP. Another commenter
contended that EPA had previously provided oral assurances that 60 day
public comment periods would be provided for this type of action.
The July 11, 1997, notice consisted solely of the proposal to
terminate the BGP and transfer facilities covered by that permit to the
MSGP, along with a few minor modifications and clarifications of the
MSGP. Given the limited complexity of the actual proposal, EPA believes
that adequate time was provided for public comment. Further, it was
necessary to limit the public comment period in consideration of the
expiration of the BGP in September 1997. EPA regrets any inconvenience
for permittees resulting from the fact that EPA was unable to provide a
longer comment period such as 60 days.
Another commenter requested a workshop on the MSGP in Alaska. As
part of the finalization of today's permitting actions, EPA is working
to communicate the requirements of the MSGP to all affected industrial
sectors. EPA believes that these efforts will address the concerns of
the commenter regarding the MSGP.
Another commenter noted certain typographical errors in the
proposal of July 11, 1997, and felt that the proposal had been rushed
and not carefully thought out. In response, EPA has considered and
responded to the comments received on the proposal and believes that
the final permitting actions are appropriate. The typographical errors
have also been corrected.
Requests for Public Hearings
Three commenters requested that additional public hearings be held
on the proposals. A commenter argued that it was unfair that hearings
were scheduled only in EPA Regions 6 and 9.
[[Page 52449]]
NPDES regulations at 40 CFR 124.12 require that a public hearing be
held when a significant public interest exists in a proposed permitting
action. Public hearings were held in Regions 6 and 9 in anticipation of
such interest. However, since only three requests for additional
hearings were received, EPA has decided not to hold additional hearings
in other areas.
Reopening the Entire MSGP for Comment
Several commenters argued that the entire MSGP should be reopened
for comment at this time. The commenters argued that facilities which
were operating under the baseline industrial permit during the issuance
process for the MSGP had no indication that they might be subject to
the MSGP in the future and therefore did not comment on the MSGP.
EPA appreciates the concerns of the commenters in this regard, but
for the reasons discussed below EPA nevertheless believes that the
proposed permitting action is appropriate. First, a considerable amount
of time was provided for comment on the original MSGP. The MSGP was
proposed on November 19, 1993 (58 FR 61146), with a 90 day comment
period. The MSGP was widely reviewed and commented upon by many
commenters, including many representing the same types of industries
which are now arguing for a reopening of the entire MSGP. Second, EPA
does not believe that the commenters in their current review of the
MSGP have identified any major new issues which were not raised during
the original comment period. EPA believes that the vast majority of
facilities covered by the baseline industrial permit will be able to
transition to the MSGP without undue hardships. If the MSGP is
inappropriate for a given facility, an individual permit may be
requested.
EPA also does not agree with commenters who stated they had no
indication the MSGP, or a permit such as the MSGP, would ever apply to
them. EPA's long term permitting strategy for industrial storm water
dischargers was promulgated on April 2, 1992 (57 FR 11394) well before
the proposal of the MSGP. This long term strategy clearly indicated
that EPA intended to issue industry-specific storm water permits, such
as the MSGP, in the future. As such, EPA does not agree that facilities
covered by the baseline industrial permit at the time of the proposed
MSGP should not have taken an interest in the proposal.
EPA also points out that reopening the entire MSGP at this time
could be a lengthy process which would not advance the objective of the
Clean Water Act of expeditiously controlling pollutants in storm water
discharges. In view of these factors, EPA has terminated the baseline
industrial permit (with the limited exceptions discussed in the fact
sheet) and as proposed is requiring facilities previously covered by
the baseline industrial permit to transition to the MSGP.
Retaining the 1992 Baseline Industrial General Permit
Many commenters recommended that EPA reissue the 1992 baseline
industrial permit and provided various reasons for this recommendation.
For example, commenters believed that the baseline industrial permit
has proven to be adequate for protection of the environment and that
the MSGP is not needed. Other commenters objected to the complexities
of the MSGP and the transition from the baseline industrial permit.
Others were concerned about a perceived inflexibility of the MSGP
(which is also discussed elsewhere in this Summary of Responses to
Comments). Another commenter argued that the baseline industrial permit
already requires compliance with the Best Available Control Technology
Economically Achievable/Best Conventional Pollutant Control Technology
(BAT/BCT) requirements of the Clean Water Act and nothing more should
be required. Still others asked whether EPA has any actual data which
shows that the MSGP provides improved water quality benefits compared
to the baseline industrial permit. Many commenters recommended that the
1992 baseline industrial permit should at least be reissued until the
year 2000 when the MSGP expires.
EPA appreciates the concerns which have been raised but
nevertheless believes that the July 11, 1997, proposal is a workable
and reasonable permitting action given the present circumstances. For
example, over 10,000 facilities are currently covered by the MSGP and
EPA has no evidence that the permit is excessively complex or
inflexible. The MSGP requires at least a consideration by permittees of
various sector-specific Best Management Practices (BMPs) which have
been identified for various types of industries. Such BMPs may or may
not have been considered and incorporated into SWPPPs by permittees
operating under the baseline industrial permit. Common sense indicates
the MSGP should provide environmental benefits equal to or better than
the baseline industrial permit. EPA also points out SWPPPs are
technology-based requirements which are required by the BAT/BCT
requirements of the Clean Water Act regardless of water quality
considerations. However, EPA also does not believe that the
requirements of the MSGP are such that only negligible additional
reductions in pollutant discharges would result. In addition, while the
baseline industrial permit represented a good first step in
establishing BAT/BCT effluent limitations for industrial storm water
discharges in 1992, EPA believes that the MSGP is an appropriate next
step to further define BAT/BCT for specific industries in 1995. As
noted elsewhere, EPA's intent to require industry-specific permits was
announced on April 2, 1992 (57 FR 11394), in the long term permitting
strategy for industries.
EPA also points out that the first storm water monitoring results
from facilities currently operating under MSGP were not due until March
31, 1998. As such, EPA has little actual monitoring data from these
facilities to compare with data from baseline industrial permit
facilities. Nevertheless, as noted above, EPA believes that the
improved SWPPPs developed pursuant to the MSGP should lead to water
quality benefits.
Several other commenters supported the proposal to terminate the
baseline industrial permit and transition facilities covered by it to
the MSGP. An industrial representative agreed with EPA that the MSGP
should be more effective in regulating industrial storm water
discharges than the baseline industrial permit which only included
generic BMP requirements. Another commenter noted that historic
properties would receive increased protection via the NOI requirements
of the MSGP, and supported the proposal on that basis. Today's final
permitting actions differ only slightly from the proposals of July 11,
1997, and EPA believes that the final actions are consistent with the
comments received from these commenters.
Expiration Date of the Baseline Industrial General Permit
Comments were received concerned the conflicting expiration dates
listed in the baseline industrial permit. Part VII.B of the baseline
industrial permit lists October 1, 1997, as the expiration date while
the signature pages list September 9, 1997 (57 FR 41300). In accordance
with NPDES regulations found at 40 CFR 122.46, an NPDES permit can be
issued for no more that five years. (Note that permittees may obtain
administrative extension of permit coverage beyond the expiration date
[[Page 52450]]
provided they have reapplied within the appropriate time frame.)
Therefore, the correct expiration date is September 9, 1997, rather
than October 1, 1997. In view of this inconsistency, EPA would use
enforcement discretion and does not intend to initiate enforcement
action for non-compliance with the CWA in instances where the
discharger submits an NOI postmarked no later than 48 hours before
October 1, 1997, to either obtain extended coverage under the baseline
industrial permit or transition to the MSGP. The Agency conducted a
mass-mailing in August 1997 to provide information concerning the
expiration of the baseline industrial permit as well as the options
available to permittees.
Another commenter requested that once the modifications are
finalized, the Agency notify all permittees and inform them of
precisely what the permit requirements are as well as the deadlines for
all submittals and permit conditions. In response, the Agency is making
the permit modifications widely known through publication in today's
Federal Register. Due to the tremendous numbers of facilities affected
by the modifications to the MSGP (i.e., all transitioning industrial
baseline permittees), resources do not allow the Agency to provide
individual attention to each permittee. The MSGP was drafted to be as
self-implementing as possible in each industrial sector as well as the
other parts which have general applicability to many or all permittees.
To assist permittees with answering questions, EPA has several sources
available by phone and over the Internet (please see Part III.H of the
Fact Sheet for a list of EPA storm water contacts). Other sources
include State and local government, trade associations and consultants.
Requesting an Individual Permit
EPA has proposed that facilities would be required to submit an
individual permit application if they are ineligible for coverage under
the MSGP due to Endangered Species Act or National Historic
Preservation Act restrictions, or other conditions. Several commenters
noted that the BGP would be terminated 30 days from the effective date
of the MSGP modification. The commenters expressed concern that the
individual permit would probably take longer than 30 days to issue and
could leave the discharger without a permit.
Part II.A.9 of the proposed modified MSGP provided that the
baseline permit would remain in effect until the individual permit was
issued for the scenario described by the commenters. As such, EPA
believes that the proposal addressed the commenters' concern and no
changes were made in the final modified MSGP in response to this
comment. It should also be noted that the individual permit application
is due 90 days after the effective date of the final modified MSGP,
rather than 30 days as had been proposed.
Issues Related to Requirements for Co-Located Facilities
Several commenters raised questions and concerns regarding the
provisions in the MSGP regarding co-located facilities. The MSGP
requires that when one facility includes operations which fall into
more than one sector, the SWPPP and monitoring requirements of both
sectors apply to the facility. It should also be noted, however, that
if monitoring for the same parameter is required by two sectors, only
one sample analysis is required for that parameter.
Concerns were expressed that some facilities may fall into many
sectors and that it may be difficult to determine which sectors would
apply. In response to this concern, EPA believes that the sectors are
reasonably clear with regards to their applicability and permittees can
successfully use their best judgment concerning which sectors apply. We
also point out that over 10,000 facilities are currently covered by the
MSGP and we have no evidence that this has been a significant problem.
Several questions were also raised specifically for airport
operations and how the MSGP is intended to be implemented for airports.
For example, clarification was requested regarding permitting
requirements for tenant operations such as car rental agencies which
may conduct on-site vehicle maintenance or fueling, but do not have a
primary SIC code which is listed in the MSGP.
The implementation of the requirements of the MSGP for airports and
their tenants was discussed in the final fact sheet and response to
comments when the MSGP was originally issued in 1995. Further
clarification is also provided below.
EPA would first like to clarify that storm water discharges from
all facilities at an airport which engage in activities such as vehicle
maintenance, painting, washing, fueling or de-icing need to be
addressed. Tenants having an SIC code of 45xx (or otherwise listed at
40 CFR 122.26(b)(14)) must obtain NPDES permit coverage which could be
accomplished by submittal of an NOI requesting MSGP coverage or by
obtaining coverage under an individual permit. Tenants such as car
rental agencies (SIC code 7514) with an SIC code (or narrative
description) other than those listed at 40 CFR 122.26(b)(14) may obtain
NPDES permit coverage. However, these tenants may also be addressed
through agreements between the airport authority and the tenant with
regards to appropriate storm water pollution control.
As discussed in the fact sheet and response to comments
accompanying the 1995 MSGP, EPA encourages airport authorities and work
cooperatively with tenants in implementing the requirements of the
MSGP. For example, one SWPPP could be developed for the entire airport
which addresses the pollution control activities to be implemented by
the airport authority and all its tenants. Each individual tenant would
only be responsible for implementing the portion of the SWPPP which
applied to his or her specific facility.
In addition, the MSGP requires monitoring for an airport as a
whole, and this could be accomplished most easily by permittees working
together. Facilities which are not co-permittees under the MSGP, or
which receive individual permits would have to comply with the
monitoring and SWPPP requirements of the MSGP (or their individual
storm water NPDES permit) on their own.
Another commenter noted that a facility such as a car hauler may be
situated next to a car manufacturer. Concern was expressed that the car
hauler might be required to comply with the SWPPP and monitoring
requirements of the car manufacturer. In response, EPA points out that
the requirements for the car manufacturer would not apply to the car
hauler in such a situation since the car hauler would be a different
operator. In addition, in response to another comment, in situations
where one industrial plant includes separate operations which fall into
more than one sector, the SWPPP and monitoring requirements for the
individual co-located facilities do not necessarily have to be
implemented throughout the entire facility. For example, in the case of
a landfill at a wood treatment facility, the SWPPP requirements for the
landfill would most likely be appropriate only for the landfill portion
of the facility.
Exemption for Existing Facilities
A commenter recommended that only new facilities should be subject
to storm water permitting requirements since they can incorporate
appropriate controls into the design of the new facility. The commenter
recommended that existing facilities should be exempt.
In response, EPA points out that Section 402(p) of the Clean Water
Act,
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as amended by the Water Quality Act of 1987, requires NPDES permits for
new and existing storm water discharges associated with industrial
activity. As such, EPA cannot waive storm water permit requirements for
existing industrial facilities as recommended by the commenter.
Flexibility of the MSGP
Several commenters raised a number of concerns and questions
related to the flexibility provided by the MSGP for different types of
facilities. A commenter recommended that the MSGP only require cost-
effective requirements and that the effects on small businesses be
considered. In response, EPA believes that the requirements of the MSGP
are reasonable and cost-effective. The MSGP was issued in 1995 after a
thorough consideration of the information in the group applicatio
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