Final National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Discharges From Industrial Activities, 56572-56578 [E8-22555]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 73, Number 189 (Monday, September 29, 2008)]
[Notices]
[Pages 56572-56578]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-22555]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8720-7; EPA-HQ-OW-2005-0007]


Final National Pollutant Discharge Elimination System (NPDES) 
General Permit for Stormwater Discharges From Industrial Activities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of availability.

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SUMMARY: EPA Regions 1, 2, 3, 5, 6, 9, and 10 today are finalizing 
EPA's NPDES general permit for stormwater discharges from industrial 
activity, also referred to as the Multi-Sector General Permit (MSGP). 
The MSGP consists of thirty four (34) separate Regional EPA permits 
that may vary from each other based on State or Tribal water quality-
based requirements. This permit replaces the existing permits that 
expired on October 30, 2005. As with the earlier permits, this permit 
authorizes the discharge of stormwater associated with industrial 
activities in accordance with the terms and conditions described 
therein. Industrial dischargers have the choice to seek coverage under 
an individual permit. An individual permit may be necessary if the 
discharger cannot meet the terms and conditions or eligibility 
requirements in the permit.

DATES: This permit is effective today, September 29, 2008. This 
effective date is necessary to provide dischargers with the immediate 
opportunity to comply with Clean Water Act requirements in light of the 
expiration of the MSGP 2000 on October 30, 2005. In accordance with 40 
CFR Part 23, this permit shall be considered issued for the purpose of 
judicial review on October 13, 2008. Under section 509(b) of the Clean 
Water Act, judicial review of this general permit can be had by filing 
a petition for review in the United States Court of Appeals within 120 
days after the permit is considered issued for purposes of judicial 
review. Under section 509(b)(2) of the Clean Water Act, the 
requirements in this permit may not be challenged later in civil or 
criminal proceedings to enforce these requirements. In addition, this 
permit may not be challenged in other agency proceedings. Deadlines for 
submittal of notices of intent are provided in Part 1.4 of the MSGP. 
This permit also provides additional dates for compliance with the 
terms of these permits.
    EPA will host a Web cast presentation on Wednesday, November 5 from 
12 noon to 2 p.m. (Eastern Standard Time) to explain the new permit 
requirements.

[[Page 56573]]

Registration information will be available on https://www.epa.gov/npdes/
training two weeks before the Web cast.

FOR FURTHER INFORMATION CONTACT: For further information on this final 
NPDES general permit, contact the appropriate EPA Regional Office 
listed in section I.D, contact Greg Schaner, EPA Headquarters, Office 
of Water, Office of Wastewater Management at tel.: 202-564-0721, or 
send questions via e-mail to EPA's stormwater permit mailbox: 
SWpermit@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Final Permit Apply To Me?

    If a discharger chooses to seek coverage under this MSGP to be 
authorized to discharge stormwater from industrial activities, the MSGP 
provides specific requirements for preventing contamination of 
stormwater discharges from industrial facilities listed in the sectors 
shown below:

Sector A--Timber Products.
Sector B--Paper and Allied Products Manufacturing.
Sector C--Chemical and Allied Products Manufacturing.
Sector D--Asphalt Paving and Roofing Materials Manufactures and 
Lubrican Manufacturers.
Sector E--Glass, Clay, Cement, Concrete, and Gypsum Product 
Manufacturing.
Sector F--Primary Metals.
Sector G--Metal Mining (Ore Mining and Dressing).
Sector H--Coal Mines and Coal Mining-Related Facilities.
Sector I--Oil and Gas Extraction and Refining.
Sector J--Mineral Mining and Dressing.
Sector K--Hazardous Waste Treatment Storage or Disposal.
Sector L--Landfills and Land Application Sites.
Sector M--Automobile Salvage Yards.
Sector N--Scrap Recycling Facilities.
Sector O--Steam Electric Generating Facilities.
Sector P--Land Transportation.
Sector Q--Water Transportation.
Sector R--Ship and Boat Building or Repairing Yards.
Sector S--Air Transportation Facilities.
Sector T--Treatment Works.
Sector U--Food and Kindred Products.
Sector V--Textile Mills, Apparel, and other Fabric Products 
Manufacturing.
Sector W--Furniture and Fixtures.
Sector X--Printing and Publishing.
Sector Y--Rubber, Miscellaneous Plastic Products, and Miscellaneous 
Manufacturing Industries.
Sector Z--Leather Tanning and Finishing.
Sector AA--Fabricated Metal Products.
Sector AB--Transportation Equipment, Industrial or Commercial 
Machinery.
Sector AC--Electronic, Electrical, Photographic and Optical Goods.
Sector AD--Reserved for Facilities Not Covered Under Other Sectors and 
Designated by the Director.

B. How Can I Get Copies of This Document and Other Related Information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. OW-2005-0007. Publicly available docket 
materials are available either electronically through https://
www.regulations.gov or in hard copy at the Water Docket in the EPA 
Docket Center, (EPA/DC) EPA West, Room 3334, 1301 Constitution Ave., 
NW., Washington, DC 20460. Publicly available docket materials are 
available in hard copy at the EPA Docket Center Public Reading Room, 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The telephone number for the Public Reading Room is 
(202) 566-1744, and the telephone number for the Water Docket is (202) 
566-2426.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the Federal Register 
listings at https://www.epa.gov/fedrgstr/.
    Electronic versions of the final permit and fact sheet are 
available at EPA's Web site https://www.epa.gov/npdes/stormwater/msgp.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at https://www.regulations.gov/fdmspublic/component/main 
view public comments, access the index listing of the contents of the 
official public docket, and to access those documents in the public 
docket that are available electronically. Once in the system, select 
``search'', then key in the appropriate docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. Although not all 
docket materials may be available electronically, you may still access 
any of the publicly available docket materials through the docket 
facility identified in section I.B.1.
    Response to public comments. EPA received 92 comments on the 
proposed permit from industry (52), government (20), and the public 
(20). EPA has responded to all significant comments received and has 
included these responses in a separate document in the public docket 
for this permit. See the document titled Proposed MSGP: EPA's Response 
to Public Comments.

C. Public Meeting

    EPA held an informal public meeting at EPA headquarters in 
Washington, DC, on December 20, 2005. The public meeting was attended 
by a wide variety of stakeholders including representatives from 
industry, government agencies, and environmental organizations. The 
public meeting included a presentation covering the major provisions of 
the proposed permit and a question and answer session. The presentation 
can be found in the public docket for this permit.

D. Who Are the EPA Regional Contacts for This Permit?

For EPA Region 1, contact Thelma Murphy at tel.: (617) 918-1615 or e-
mail at murphy.thelma@epa.gov.
For EPA Region 2, contact Stephen Venezia at tel.: (212) 637-3856 or e-
mail at venezia.stephen@epa.gov or for Puerto Rico, Sergio Bosques at 
tel.: (787) 977-5838 or e-mail at bosques.sergio@epa.gov.
For EPA Region 3, contact Garrison Miller at tel.: (215) 814-5745 or e-
mail at miller.garrison@epa.gov.
For EPA Region 5, contact Brian Bell at tel.: (312) 886-0981 or e-mail 
at bell.brianc@epa.gov.
For EPA Region 6, contact Brent Larsen at tel.: (214) 665-7523 or e-
mail at: larsen.brent@epa.gov.
For EPA Region 9, contact Eugene Bromley at tel.: (415) 972-3510 or e-
mail at bromley.eugene@epa.gov.
For EPA Region 10, contact Misha Vakoc at tel.: (206) 553-6650 or e-
mail at vakoc.misha@epa.gov.

II. Background

    Section 405 of the Water Quality Act of 1987 (WQA) added section 
402(p) of the Clean Water Act (CWA), which directed the Environmental 
Protection Agency (EPA) to develop a phased approach to regulate 
stormwater discharges under the National Pollutant Discharge 
Elimination System (NPDES) program. EPA published a final regulation on 
the first phase on this program on November 16, 1990,

[[Page 56574]]

establishing permit application requirements for ``stormwater 
discharges associated with industrial activity.'' See 55 FR 48063. EPA 
defined the term ``stormwater discharge associated with industrial 
activity'' in a comprehensive manner to cover a wide variety of 
facilities. See 40 CFR 122.26(b)(14). EPA is issuing the MSGP under 
this statutory and regulatory authority.
    Dischargers choosing to be covered by the MSGP must certify in 
their notice of intent (NOI) that they meet the requisite eligibility 
requirements, described in Part 1 of the permit. In addition, 
dischargers must install and implement control measures to meet the 
effluent limits required in Part 2 and develop a stormwater pollution 
prevention plan (SWPPP) consistent with Part 5 describing their control 
measures used to achieve the effluent limits. Under the MSGP, a 
facility is required to take corrective action (Part 3) to modify or 
replace control measures in order to eliminate certain unauthorized 
releases, or conditions giving rise to violations of effluent limits or 
exceedances above applicable water quality standards. Facilities are 
also required to conduct quarterly site inspections (Part 4.1), 
quarterly visual assessments of the stormwater discharge (Part 4.2), 
and annual comprehensive site inspections (Part 4.3). Permitted 
facilities are required to submit to EPA quarterly benchmark monitoring 
results (Part 6.2.1), and, where applicable, stormwater effluent data 
relating to impaired waters (Part 6.2.4) and compliance with numeric 
effluent limitations guidelines (Part 6.2.2). EPA notes that Part 6.2.1 
emphasizes that the benchmark thresholds used for monitoring are not 
effluent limits, but rather information that is primarily for the use 
of the industrial facility to determine the overall effectiveness of 
the control measures and to assist in understanding when corrective 
action(s) may be necessary. In addition, permittees are required to 
submit an annual report that includes the findings of the facility's 
comprehensive site inspection and a summary of any corrective actions 
required during the past year.

III. Scope and Applicability of the Multi-Sector General Permit

    The MSGP 2000 expired at midnight, October 30, 2005. Dischargers 
that were previously covered by the MSGP 2000 have been covered by an 
administrative continuance in the interim period until they are 
authorized for coverage under this permit.

A. Geographic Coverage

    This permit provides coverage for sectors of industrial point 
source discharges that occur in areas not covered by an approved State 
NPDES program. The geographic coverage of this permit is listed in 
Appendix C of this permit. EPA notes that unlike the MSGP 2000, 
facilities located in Regions 4 and 8 will not be covered by this 
permit because they are issuing their own NPDES general permit. EPA 
also notes that because certifications required by section 401 of the 
Clean Water Act were not received in time, coverage under this permit 
is not yet available in the following areas:
     The State of Alaska, except Indian Country lands;
     The State of Idaho, except Indian Country lands;
     Indian Country lands within the State of Idaho, except 
Duck Valley Reservation lands;
     Indian Country lands within the State of Oregon, except 
Fort McDermitt Reservation lands;
     Indian Country lands within the State of Washington; and
     Federal facilities in the State of Washington, except 
those located on Indian Country lands.

EPA will announce the availability of coverage under the MSGP for these 
areas in a separate Federal Register notice as soon as possible after 
the certifications are completed.

B. Categories of Facilities Covered

    This permit regulates stormwater discharges from industrial 
facilities in 29 sectors, as shown above in section I.A., in the five 
states and other areas (e.g., federal facilities, Indian Country lands, 
and U.S. territories) where EPA remains the permitting authority. See 
Appendix D of the final MSGP and the MSGP fact sheet for more complete 
information.

C. Summary of Significant Changes from 2000 Multi-Sector General Permit

    This permit replaces the MSGP 2000 that was issued for a five-year 
term on October 30, 2000 (65 FR 64746). The MSGP 2000 was subsequently 
corrected on January 9, 2001 (66 FR 1675-1678) and March 23, 2001 (66 
FR 16233-16237). On April 16, 2001 (66 FR 19483-19485), EPA re-issued 
the permit, as corrected, for facilities in certain areas of Regions 8 
and 10.
    This permit is structured in nine parts: General requirements that 
apply to all facilities (e.g., eligibility of discharges, effluent 
limitations, storm water pollution prevention plan (SWPPP) 
requirements, monitoring and reporting requirements (Parts 1-7)), 
industrial sector-specific conditions (Part 8), and specific 
requirements applicable to facilities within individual States or on 
Indian Country lands (Part 9). Additionally, the appendices provide 
forms for the Notice of Intent (NOI), the Notice of Termination, the 
Conditional No Exposure Exclusion, and the annual report, as well as 
step-by-step procedures for determining eligibility with respect to 
protecting historic properties and endangered species, and for 
calculating site-specific, hardness-dependent benchmarks.
    EPA made a number of changes to the permit from the MSGP 2000. 
These changes are summarized below and are discussed in more detail in 
the MSGP fact sheet.

Distinction Between Effluent Limits and SWPPP Requirements

    The permit clearly distinguishes between the effluent limitations 
(or effluent limits) from the requirements relating to the development 
of the SWPPP. Effluent limits (in Part 2, and for select industrial 
sectors, in Part 8) are qualitative and quantitative control 
requirements to which all permittees are subject, while the SWPPP is a 
planning document that must be prepared by all facility operators that 
describes the site and the pollutants potentially discharged in 
stormwater, and documents the control measures selected, designed, 
installed, and implemented to meet the effluent limitations. 
Additionally, the SWPPP requirements were modified to separate the 
provisions required for the initial document developed prior to NOI 
submittal and the requirements for the additional documentation of 
actions taken (e.g., inspections, training, correction actions, etc.) 
during the permit term. Finally, the effluent limits themselves were 
reorganized to more clearly distinguish those that are technology-based 
from those that are water quality-based.

Discharge Authorization Time Frame

    The waiting period for operators who have correctly completed and 
submitted their NOIs is 30 days (or, in some cases, 60 days) to provide 
for sufficient review by the Fish & Wildlife Service and/or the 
National Marine Fisheries Service to determine if the permit's 
authorization to a particular discharger raises any significant 
concerns with respect to any federally-listed species or critical 
habitat. During this period, the public may review this information as 
well. The waiting period begins after EPA posts the operator's NOI on 
the eNOI Web site. The duration of the waiting

[[Page 56575]]

period depends on when the operator commenced or proposes to commence 
discharging.

Electronic Systems for Submittal of Notices of Intent (NOIs), Water 
Locator Tool, and Reporting of Monitoring Data

    EPA is launching an updated electronic system for submitting NOIs. 
This ``eNOI'' system is available to all operators, and can be accessed 
at https://www.epa.gov/npdes/eNOI. The system helps industrial operators 
fill in answers quickly and correctly, and should better facilitate an 
operator's coverage under the permit. EPA encourages all operators to 
use this system. Authorized permittees will be notified by email of 
their authorization and their specific monitoring requirements.
    EPA has added a new web-based tool, the Water Locator, that will 
help operators determine their latitude and longitude, their receiving 
water, relevant total maximum daily loads (TMDLs), and pollutants of 
particular concern (i.e., those for which there is a specific criterion 
in the receiving water, and those for which a receiving water is 
impaired). The Water Locator can be accessed at https://www.epa.gov/
npdes/stormwater/msgp.
    In addition, operators will now be able to report all monitoring 
data electronically through the eNOI system. This system for electronic 
reporting will be available in the next 6 months. All electronic 
reporting will be through EPA's on-line eNOI system, available at 
https://www.epa.gov/npdes/eNOI. EPA has delayed implementation of 
required monitoring for 6 months to ensure that the electronic 
reporting system is ready when monitoring begins.

Information Required for Notices of Intent (NOIs)

    This permit specifies the information that is required to be 
provided in NOIs so that EPA can determine whether any further water 
quality-based requirements are necessary and to enable the eNOI system 
to automatically inform the operator of its specific monitoring 
requirements. Operators are required to provide more specific 
information regarding their receiving waterbody, including whether the 
waterbody is impaired, and, if so, for which pollutant it is impaired 
and whether there is an approved or established TMDL for the waterbody, 
and whether the waterbody is designated by a State or Tribal Authority 
as Tier 2 or 2.5 for antidegradation purposes. The operator also needs 
to identify if it is a new discharger, the size of its property, and 
which effluent guidelines it is subject to (if any). In addition, to 
enhance protection of endangered species, if the operator is certifying 
eligibility under Criterion E of Appendix E, then he/she will need to 
provide additional information supporting this certification. In 
addition, the operator is asked to specify if its facility will be 
inactive and unstaffed during the permit term, and, if so, for how 
long.

Water Quality-Based Effluent Limits

    The permit contains water quality-based effluent limits (WQBELs) to 
ensure that discharges are controlled as necessary to meet water 
quality standards in receiving waters.
     Discharges to Impaired Waters--The permit contains 
different requirements for new and existing dischargers and for those 
that are discharging to impaired waters with a completed total maximum 
daily load (TMDL) as compared to those without a TMDL. New dischargers 
are only eligible for discharge authorization if they document that 
either there is no exposure to stormwater of the pollutant for which 
the water is impaired at the site, or the impairment pollutant is not 
present at the operator's site, or that the discharge is not expected 
to cause or contribute to a water quality standards exceedance. For 
existing discharges to impaired waters with a completed TMDL, EPA will 
inform the operator of any additional effluent limits or controls that 
are necessary for the discharge to be consistent with the assumptions 
of any available wasteload allocation in the TMDL. The permittee is 
also required to monitor its discharge for any pollutant(s) for which 
the waterbody is impaired. For existing discharges to impaired waters 
without a completed TMDL, the permittee is required to control its 
discharge as necessary to meet water quality standards and to monitor 
for the pollutant(s) causing the impairment.
     Antidegradation Requirements--EPA has clarified how 
operators can meet antidegradation requirements in order to be 
authorized to discharge. If an NOI indicates that an operator is 
seeking coverage for a new discharge to a Tier 2 water (or a water 
considered to be a Tier 2.5 water), EPA will then determine if 
additional requirements are necessary to be consistent with the 
applicable antidegradation requirements, or if an individual permit 
application is necessary. Furthermore, operators are not eligible for 
coverage under this permit if they are discharging to waters designated 
by a State or Tribe as Tier 3 for antidegradation purposes.

Protection of Endangered Species

    During EPA's consultation with the Fish & Wildlife Service and 
National Marine Fisheries Service (``the Services'') pursuant to 
section 7(a)(2) of the Endangered Species Act (ESA), modifications have 
been made to the directions provided to operators in Appendix E 
regarding steps that must be followed to properly certify eligibility 
under Part 1.1.4.5 (Endangered and Threatened Species and Critical 
Habitat Protection). In addition, certain benchmarks have been revised 
to provide greater protection to listed species. EPA revised the 
ammonia benchmark from 19 mg/L to 2.14 mg/L to provide a better 
indicator of the adverse impact to endangered mussel species. EPA 
selected this benchmark based on a level that is considered protective 
of mussel species in waters up to pH 8; it will also be protective of 
other species in waters with a pH up to 8.5.
    Also, EPA adjusted the benchmarks for six hardness-dependent metals 
(i.e., silver, cadmium, lead, nickel, copper, and zinc) so that the 
benchmark concentrations are site-specific depending on the hardness 
levels in the receiving water. This change affects 12 sectors. Where a 
permittee is required to monitor for a hardness-dependent metal, he/she 
must first determine the hardness value of the receiving water. The 
benchmark concentration is then determined by comparing the table of 
hardness ranges (see Appendix J) to the actual, measured value for 
hardness in the receiving water. This change will provide better 
protection to some listed species and will further ensure that 
discharges do not cause or contribute to exceedances of water quality 
standards with numeric criteria expressed as hardness-dependent values.

Corrective Actions

    This permit specifies corrective actions required of permittees. 
The provisions in Part 3 specify the types of conditions at the site 
that trigger corrective action requirements, what must be done to 
address such conditions and ensure that the permittee remains in 
compliance with the permit, or promptly returns to compliance in the 
case of violations, and the deadlines for completing corrective action. 
The permit also clarifies that not conducting required corrective 
action is a permit violation in and of itself, in addition to any 
underlying violation that may have triggered the requirement for 
corrective action. A summary of all corrective actions initiated and/or 
completed each year must be reported to EPA in the

[[Page 56576]]

annual comprehensive site inspection report.

Monitoring

    Several of the changes made in this permit to the monitoring 
requirements of the MSGP 2000 are listed below.
     Inactive and unstaffed sites may exercise a waiver for 
benchmark monitoring and quarterly visual assessments as long as there 
are no industrial materials or activities exposed to stormwater at the 
sites. Because of the difficulty of accessing remote sites, operators 
of mining operations that are inactive and unstaffed may continue to 
exercise this waiver without demonstrating that its industrial 
materials or activities are not exposed to stormwater, but EPA may 
impose alternate, site-specific requirements where necessary for the 
protection of water quality standards.
     Unless subject to a waiver, or an alternative schedule for 
climates with irregular stormwater runoff, permittees must monitor 
quarterly during year 1 for benchmarks. Following 4 quarters of 
benchmark monitoring, if the average of the 4 monitoring values does 
not exceed the benchmark for that specific parameter, the permittee has 
fulfilled his/her benchmark monitoring requirements for that parameter 
for the permit term. If the average of the 4 quarters of monitoring 
values exceeds the benchmark, the permittee is required to perform 
corrective action and conduct an additional 4 quarters of monitoring, 
unless, the permittee determines (and documents in the SWPPP) that no 
further pollutant reductions are technologically available and 
economically practicable and achievable in light of best industry 
practice to meet the effluent limits in Part 2 of the permit. If such a 
determination is made, the permittee may reduce monitoring for that 
pollutant to once-per-year for the duration of the permit term. At any 
time prior to completion of the first 4 quarters of monitoring, if the 
permittee determines that it is mathematically certain that his/her 
average after 4 quarters will exceed the benchmark (e.g., the sum of 
results to date exceeds 4 times the benchmark), the permittee must 
review its control measures and perform any required corrective action 
immediately (or document why no corrective action is required), without 
waiting for the full 4 quarters of monitoring data. If after the 
permittee has modified his/her control measures and conducted 4 
additional quarters of monitoring, the average still exceeds the 
benchmark (or if an exceedance of the benchmark by the four quarter 
average is mathematically certain prior to conducting the full 4 
additional quarters of monitoring), the permittee must again review 
his/her control measures and either resample an additional 4 times or 
document that no further pollutant reductions are technologically 
available and economically practicable and achievable in light of best 
industry practice to meet the effluent limits in Part 2 of the permit.
     A permittee who discharges a pollutant causing an 
impairment to an impaired waterbody must monitor once-per-year for that 
pollutant during a stormwater event if there is no TMDL for the 
waterbody. Monitoring may be waived after one year if the pollutant was 
not detected in the sample and the permittee documents that the 
pollutant is not exposed to stormwater at the site. Monitoring may also 
be waived if the permittee documents that the presence of a pollutant 
of concern in its discharge is attributable to natural background 
pollutant levels in stormwater runoff, and not to the activities of the 
permittee. If the discharge is to a waterbody for which a TMDL has 
established a WLA applicable to the facility, EPA will inform the 
permittee of specific monitoring instructions, including the 
pollutant(s) for which monitoring is to be conducted and the required 
frequency.
     Follow-up monitoring requirements have been added when 
results indicate a permittee's discharge exceeds a numeric effluent 
limitation to verify that control measures have been modified to 
control the discharge as necessary to meet the effluent limit. If the 
follow-up monitoring also exceeds the limit, the permittee must submit 
an exceedance report to EPA within 30 days of receiving the analytical 
data, documenting the reason for the exceedance and the corrective 
action taken to eliminate it, including a corrective action schedule 
where applicable.
     EPA has added provisions enabling dischargers to avoid 
corrective action and subsequent monitoring requirements if the 
exceedance of a benchmark is attributable solely to natural background 
levels of that pollutant in stormwater runoff. In order to use this 
provision, the discharger must: (1) Have benchmark results that show 
pollutant levels are less than or equal to the concentration of that 
pollutant in the natural background; (2) document the supporting 
rationale for concluding that benchmark exceedances are attributable 
solely to natural background pollutant levels; and (3) notify EPA in 
the fourth benchmark monitoring report that benchmark exceedances are 
attributable solely to natural background pollutant levels.

Annual Report

    Permittees are now required to submit to EPA an annual report that 
includes the findings from their annual comprehensive site inspection 
report and a summary of corrective actions required and taken during 
the reporting period. EPA has provided a recommended form for each 
permittee to use in filing its annual report. See Appendix I.

Industry Sector-Specific Requirements

    The following key elements of the permit are included in Part 8, 
which describes requirements specific to particular industry sectors:
     For many sectors, general requirements to address 
pollutant discharges from materials handling areas, fueling areas, etc. 
were consolidated in the technology-based effluent limits in Part 2.1 
that are applicable to all sectors.
     Mining Sectors G, H, and J--The permit now specifically 
includes coverage for construction and exploration activities under 
this permit, where in the past those activities were required to be 
covered separately under the Construction General Permit (CGP). To 
facilitate such coverage, additional requirements have been added 
regarding site map preparation; management, inspection, maintenance, 
and cessation of clearing, grading, and excavation activities; 
monitoring frequency; and temporary and final stabilization. These new 
requirements largely mirror those in the CGP for these activities. The 
scope of coverage has also been clarified, and an exception provided to 
the requirement that inactive and unstaffed sites have no industrial 
materials or activities exposed to stormwater in order to exercise 
applicable monitoring and inspection waivers.
     Sector P--Text has been added to include illicit plumbing 
connections among the potential pollutant sources addressed, and a 
requirement has been added to document specific good housekeeping 
control measures used in each of the facility areas.
     Sector S--Requirements have been added emphasizing control 
measures, facility inspections, good housekeeping, vehicle and 
equipment washwater, and monitoring during the deicing season and for 
implementing controls to collect or contain contaminated melt water 
from collection areas used for disposal of contaminated snow.

[[Page 56577]]

     Sector AC--Electrical and electronic equipment and 
components has been added as a new subsector.

D. Permit Appeal Procedures

    In accordance with 40 CFR part 23, this permit shall be considered 
issued for the purpose of judicial review on October 13, 2008. Under 
section 509(b) of the Clean Water Act, judicial review of this general 
permit can be had by filing a petition for review in the United States 
Court of Appeals with 120 days after the permit is considered issued 
for purposes of judicial review. Under section 509(b)(2) of the Clean 
Water Act, the requirements in this permit may not be challenged later 
in civil or criminal proceedings to enforce these requirements. In 
addition, this permit may not be challenged in other agency 
proceedings. In addition, rather than submitting an NOI to be covered 
under this permit, persons may apply for an individual permit as 
specified at 40 CFR 122.21 (and authorized at 40 CFR 122.28), and then 
petition the Environmental Appeals Board to review any conditions of 
the individual permit (40 CFR 124.19 as modified on May 15, 2000, 65 FR 
30886).

IV. Compliance with the Regulatory Flexibility Act for General Permits

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    The legal question of whether a general permit (as opposed to an 
individual permit) qualifies as a ``rule'' or as an ``adjudication'' 
under the Administrative Procedure Act (APA) has been the subject of 
periodic litigation. In a recent case, the court held that the CWA 
section 404 Nationwide general permit before the court did qualify as a 
``rule'' and therefore that the issuance of the general permit needed 
to comply with the applicable legal requirements for the issuance of a 
``rule.'' National Ass'n of Home Builders v. U.S. Army Corps of 
Engineers, 417 F.3d 1272, 1284-85 (DC Cir. 2005) (Army Corps general 
permits under section 404 of the Clean Water Act are rules under the 
APA and the Regulatory Flexibility Act; ``Each NWP [nationwide permit] 
easily fits within the APA's definition of a `rule.'* * * As such, each 
NWP constitutes a rule * * *'').
    As EPA stated in 1998, ``the Agency recognizes that the question of 
the applicability of the APA, and thus the RFA, to the issuance of a 
general permit is a difficult one, given the fact that a large number 
of dischargers may choose to use the general permit.'' 63 FR 36489, 
36497 (July 6, 1998). At that time, EPA ``reviewed its previous NPDES 
general permitting actions and related statements in the Federal 
Register or elsewhere,'' and stated that ``[t]his review suggests that 
the Agency has generally treated NPDES general permits effectively as 
rules, though at times it has given contrary indications as to whether 
these actions are rules or permits.'' Id. at 36496. Based on EPA's 
further legal analysis of the issue, the Agency ``concluded, as set 
forth in the proposal, that NPDES general permits are permits [i.e., 
adjudications] under the APA and thus not subject to APA rulemaking 
requirements or the RFA.'' Id. Accordingly, the Agency stated that 
``the APA's rulemaking requirements are inapplicable to issuance of 
such permits,'' and thus ``NPDES permitting is not subject to the 
requirement to publish a general notice of proposed rulemaking under 
the APA or any other law * * * [and] it is not subject to the RFA.'' 
Id. at 36497.
    However, the Agency went on to explain that, even though EPA had 
concluded that it was not legally required to do so, the Agency would 
voluntarily perform the RFA's small-entity impact analysis. Id. EPA 
explained the strong public interest in the Agency following the RFA's 
requirements on a voluntary basis: ``[The notice and comment] process 
also provides an opportunity for EPA to consider the potential impact 
of general permit terms on small entities and how to craft the permit 
to avoid any undue burden on small entities.'' Id. Accordingly, with 
respect to the NPDES permit that EPA was addressing in that Federal 
Register notice, EPA stated that ``the Agency has considered and 
addressed the potential impact of the general permit on small entities 
in a manner that would meet the requirements of the RFA if it 
applied.'' Id.
    Subsequent to EPA's conclusion in 1998 that general permits are 
adjudications, rather than rules, as noted above, the DC Circuit 
recently held that Nationwide general permits under section 404 are 
``rules'' rather than ``adjudications.'' Thus, this legal question 
remains ``a difficult one'' (supra). However, EPA continues to believe 
that there is a strong public policy interest in EPA applying the RFA's 
framework and requirements to the Agency's evaluation and consideration 
of the nature and extent of any economic impacts that a CWA general 
permit could have on small entities (e.g., small businesses). In this 
regard, EPA believes that the Agency's evaluation of the potential 
economic impact that a general permit would have on small entities, 
consistent with the RFA framework discussed below, is relevant to, and 
an essential component of, the Agency's assessment of whether a CWA 
general permit would place requirements on dischargers that are 
appropriate and reasonable. Furthermore, EPA believes that the RFA's 
framework and requirements provide the Agency with the best approach 
for the Agency's evaluation of the economic impact of general permits 
on small entities. While using the RFA framework to inform its 
assessment of whether permit requirements are appropriate and 
reasonable, EPA will also continue to ensure that all permits satisfy 
the requirements of the Clean Water Act.
    Accordingly, EPA hereby commits that the Agency will operate in 
accordance with the RFA's framework and requirements during the 
Agency's issuance of CWA general permits (in other words, the Agency 
commits that it will apply the RFA in its issuance of general permits 
as if those permits do qualify as ``rules'' that are subject to the 
RFA). In satisfaction of this commitment, during the course of this 
MSGP permitting proceeding, the Agency conducted the analysis and made 
the appropriate determinations that are called for by the RFA. In 
addition, and in satisfaction of the Agency's commitment, EPA will 
apply the RFA's framework and requirements in any future MSGP 
proceeding as well as in the Agency's issuance of other NPDES general 
permits. EPA anticipates that for most general permits the Agency will 
be able to conclude that there is not a significant economic impact on 
a substantial number of small entities. In such cases, the requirements 
of the RFA framework are fulfilled by including a statement to this 
effect in the permit fact sheet, along with a statement providing the 
factual basis for the conclusion. A quantitative analysis of impacts 
would only be required for permits that may affect a substantial number 
of small entities, consistent with EPA guidance regarding RFA 
certification \1\.
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    \1\ EPA's current guidance, entitled Final Guidance for EPA 
Rulewriters: Regulatory Flexibility Act as Amended by the Small 
Business Regulatory Enforcement and Fairness Act, was issued in 
November 2006 and is available on EPA's Web site: https://
www.epa.gov/sbrefa/documents/rfafinalguidance06.pdf. After 
considering the Guidance and the purpose of CWA general permits, EPA 
concludes that general permits affecting less than 100 small 
entities do not have a significant economic impact on a substantial 
number of small entities.

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[[Page 56578]]

V. Quantitative Analysis of Economic Impacts of the MSGP

    EPA has determined, in consideration of the discussion in section 
IV above, that the issuance of the MSGP potentially could affect a 
substantial number of small entities. Therefore, to determine what, if 
any, economic impact this permit may have on small businesses, EPA 
conducted an economic assessment of this general permit. Based on this 
assessment, EPA concludes that this permit will not have a significant 
economic impact on a substantial number of businesses, including small 
businesses. The estimated increased compliance cost per permittee 
ranges from a low of $8.37 per year to a high of $28.27 per year. All 
cost estimates are presented in 2005 dollars. As a percentage of annual 
sales, the expected incremental burden of these estimated costs is 
small. The cost-to-sales ratios are small across all MSGP sectors, with 
the largest impacts observed in Sectors I (0.003 percent) and P (0.003 
percent).
    These cost estimates reflect the incremental monitoring, 
documentation and reporting costs imposed by this permit, relative to 
the comparable costs for compliance with MSGP 2000. They do not include 
the costs of additional control measures that may be required as a 
result of more rigorous documentation and reporting requirements (e.g., 
for corrective action). EPA recognizes that these costs may be 
significant for some facilities, but believes that relatively few 
facilities will have significantly increased costs relative to MSGP 
2000 because in most cases the underlying standards of control have not 
changed. EPA was unable to quantify these costs because EPA is not able 
to predict what site-specific additional control measures may be 
necessary in these limited cases.
    Based on EPA's analysis, the Agency concludes that this permit will 
not result in a significant economic impact on a substantial number of 
small businesses. The factual basis for this conclusion is included in 
the economic analysis for the permit, available as part of the docket 
for this permit, and summarized above.

    1. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
    Dated: September 17, 2008.
Robert W. Varney,
Regional Administrator, EPA Region 1.

    2. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
    Dated: September 17, 2008.
Carl-Axel P. Soderberg,
Division Director, Caribbean Environmental Protection Division, EPA 
Region 2.

    3. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
    Dated: September 16, 2008.
Jon M. Capacasa,
Director, Water Protection Division, EPA Region 3.

    4. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
    Dated: September 16, 2008.
Timothy C. Henry,
Acting Director, Water Division, EPA Region 5.

    5. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
    Dated: September 17, 2008.
Miguel I. Flores,
Director, Water Quality Protection Division, EPA Region 6.

    6. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
    Dated: September 16, 2008.
Alexis Strauss,
Director, Water Division, EPA Region 9.

    7. Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
    Dated: September 16, 2008.
Christine Psyk,
Deputy Director, Office of Water and Watersheds, EPA Region 10.
[FR Doc. E8-22555 Filed 9-26-08; 8:45 am]
BILLING CODE 6560-50-P