# 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 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A98-25059 ## Record - **Collection:** Federal Register - **Document type:** Notice - **Published:** September 30, 1998 - **Citation:** 63 FR 52430 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A98-25059. Public record. Not legal advice.