Title: 40 CFR Part 122, National Pollutant Discharge Elimination System Request for Comment on Alternative Approaches for Phase II Storm Water Program; Proposed Rule - Sept 9, 1992
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Title: 40 CFR Part 122, National Pollutant Discharge Elimination System Request for Comment on Alternative Approaches for Phase II Storm Water Program; Proposed Rule - Sept 9, 1992
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Abstract: Jake Varn Collection - 40 CFR Part 122, National Pollutant Discharge Elimination System Request for Comment on Alternative Approaches for Phase II Storm Water Program; Proposed Rule - Sept 9, 1992 (JDV Box 95)
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Full Text


Wednesday
September 9, 1992


Part IV


Environmental
Protection Agency


40 CFR Part 122
National Pollutant Discharge Elimination
S System, Request for Comment on
Alternative Approaches for Phase II
Storm Water Program; Proposed Rule










4_




l


41344 Federal Register / Vol. 57, No. 175 / Wednesday, September 9, 1992 / Proposed Rules
ENVIRNMENAL POTECIO


ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Part 122
[FRL-4202-9 -
National Pollutant Discharge
Elimination System, Request for
Comment on Alternative Approaches
for Phase II Storm Water Program
AGENCY: Environmental Protection
Agency.
ACTION: Request for comment.
SUMMARY: In a memorandum dated
January 28, 1992, the President asked
regulatory agencies to review existing
and proposed rules to improve cost
effectiveness, minimize economic
impact, and reduce regulatory burden. In
response, today's notice requests
information and public input on Phase I
of the national storm water program
mandated under section 402(p)(6) of the
Clean Water Act (CWA). More
specifically, EPA is today requesting
public comment on a number of issues
including scope of coverage under Phase
II, identification of high risk Phase II
discharges, alternative control
strategies, and appropriate deadlines.
With respect to each of these issues, the
Agency is requesting input on how to
meet environmental objectives and
requirements set forth under section
402(p)(6) while at the same time
identifying cost-effective control
strategies that minimize the economic
impact on the regulated community as
well as the administrative burden on
Federal, State and local government.
DATES: Comments on this notice must be
received on or before November 9, 1992.
ADDRESSES: Respondents should send
an original and two copies of their
comments to Michael Plehn, Office of
Wastewater Enforcement and
Compliance (EN-336), United States
Environmental Protection Agency, 401 M
Street, SW., Washington, DC, 20460,
(202) 260-6929. The public record for this
notice is located at EPA Headquarters,
NE Mall room 220,401 M Street, SW.,
Washington, DC, 20460. Appointments
to view the record can be made by
contacting Michael Plehn at the above
address. A reasonable fee may be
charged for copying. The public record
for previous rulemaking activity related
to Phase I of the storm water program is
located at EPA Headquarters, EPA
Public Information Reference Unit, room
2402, 401 M Street, SW., Washington,
/- DC, 20460.
FOR FURTHER INFORMATION CONTACT:
For further information on this notice,
contact the NPDES Storm. Water Hotline


at (703) 821-4823, or Michael Plehn.
Office of Wastewater Enforcement and
Compliance (EN-336), United States
Environmental Protection Agency, 401 M
Street. SW., Washington, DC 20460,
(202) 260-6929.
SUPPLEMENTARY INFORMATION:
I. Background
A. Environmental Impacts
B. Water Quality Act of 1987
C. Current (Phase I) Storm Water Permitting
Program
II. Today's Notice
A. Purpose and Intent
B. Alternative Approaches
1. Targeting
(a) Seek Amendments to the CWA to
eliminate Phase II and use designation
authority to bring additional sources
under Phase I
(b) Identify targeted MS4s as needing an
NPDES permit under section 402(p)(6) of
the CWA
(c) Continued reliance on Phase I MS4s to
control Phase II source which discharge
through their system
(d) Identify additional Phase II activities
other than MS4s based on comparative
loadings
(e) Geographic targeting
(f) Establish requirements for State storm
water management programs
(g) Rensselaerville focus groups
2. Control Strategies
(a) Continued reliance on NPDES program
(b) Continued reliance on nonpoint source
program
(c) Mandatory performance standards,
guidelines, management practices and/or
treatment requirements
(d) Rensselaerville focus groups
3. Deadlines
III. Request for Comments
A. General Issues for Comment
B. Current Classification of Regulated
Discharges
IV. Review and Analysis Requirements
I. Background
The 1972 amendments to the Federal
Water Pollution Control Act (FWPCA,
later referred to as the Clean Water Act
or CWA) prohibit the discharge of any
pollutant to the navigable waters of the
United States from a point source unless
the discharge is authorized by a
National Pollutant Discharge
Elimination System (NPDES) permit.
Efforts to improve water quality under
the NPDES program have focused
traditionally on reducing pollutants in
discharges of industrial process
wastewater and discharges from
municipal sewage treatment plants. This
program emphasis developed because
many industrial and municipal sources
were not controlled at that time and
were easily identified as contributing to
water quality impairment. Over time, as


pollution control measures were
implemented for these discharges and as
data collection efforts have provided
additional information, it has become
evident that more diffuse sources of
water pollution, such as agricultural and
urban runoff, are important contributors
to water quality problems and use
impairment. Some diffuse sources of
water pollution, such as agricultural
runoff and irrigation return flows, are
exempted statutorily from the NPDES
program. Controls for other point source
discharge of storm water runoff,
however, are addressed in this notice.
A. Environmental Impacts
Several national assessments have
been conducted to evaluate the impacts
of diffuse sources of storm water runoff
on receiving water quality. The
"National Water Quality Inventory, 1990
Report to Congress" provides a general
assessment of water quality based on
biennial reports submitted by the States
under section 305(b) of the CWA. In
section 305(b) Reports, States indicate
the fraction of the States' waters that
have been assessed, the fraction of
those assessed waters that are not
supporting designated uses, and the
sources of use impairment for those
waters (e.g., diffuse sources, point
sources, and natural sources). The
Report indicates that roughly 30 to 40
percent of assessed rivers, lakes and
estuaries are not supporting the uses for
which they are designated. Based on
information from 51 States and
Territories that reported on sources of
pollution, the Report indicates that
storm water runoff from a number of
diffuse sources, including agricultural
areas, urban areas, construction sites,
land disposal activities, and resource
extraction activities, is the leading cause
of water quality impairment cited by
States. For those States reporting in
each category, diffuse sources were
cited as causing use impairments in the
following magnitudes: For rivers and
streams, 11 percent of impaired river
miles are caused by separate storm
sewers, 6 percent are caused by
construction activities, and 14 percent
are caused by resource extraction. For
lakes, 28 percent of impaired lake acres
are caused by separate storm sewers
and 25 percent are caused by land
disposal. For the Great Lakes' shoreline,
6 percent of impaired shoreline miles are
caused by separate storm sewers, and
41 percent are caused by land disposal.
For estuaries, 30 percent of impaired
acres are caused by separate storm
sewers. For coastal areas, 36 percent of
impairments are caused by separate








Federal Register / Vol. 57, No. 175 / Wednesday, September 9, 1992 / Proposed Rules


storm sewers, and 37 percent are caused
by land disposal.
In 1985, the States conducted a
different study of diffuse pollution
sources under the sponsorship of the
Association of State and Interstate
Water Pollution Control Administrators
(ASIWPCA) and EPA. The study
resulted in the report entitled
"America's Clean Water-The States'
Nonpoint Source Assessment, 1985." In
that study, 38 States reported urban
storm water runoff as a major cause of
beneficial use impairment. In addition,
21 States reported construction site
runoff as a major cause of use
impairment.
Studies conducted by the National
Oceanic and Atmospheric
Administration (NOAA) indicate that
urban storm water runoff is indeed a
major pollutant source that adversely
affects shellfish growing waters.l The
NOAA studies concluded that urban
runoff affects 39 percent of harvest-
limited area on the East Coast, 59
percent in the Gulf of Mexico, and 52
percent on the West Coast.
B. Water Quality Act of 1987
In response to growing concerns with
the environmental impact of storm
water runoff, Congress addressed this
issue as part of the Water Quality Act of
1987 (WQA) by adding section 402(p) to
the CWA to require the establishment of
a comprehensive two-phased approach
for the control of storm water
discharges. Section 402(p)(1) prohibits
EPA or NPDES States from requiring
permits for storm water discharges until
October 1, 1992, except for 5 classes of
storm water discharges specifically
listed under section 402(p)(2) (see
appendix A). These 5 classes of
discharges make up Phase I of the
existing national storm water program
and include storm water discharges:
(A) Permitted before February 4, 1987;
(B) Associated with industrial activity;
(C) From a municipal separate storm
sewer system serving a population of
250,000 or more;
(D) From a municipal separate storm
sewer system serving a population of
100,000 or more, but less than 250,000;
(E) Which EPA or a NPDES State
determines contributes to a violation of
a water quality standard or is a
significant contributor of pollutants to
the waters of the United States.
Section 402(p)(3) confirms that, like all
other point source discharges under the

S"The Quality of Shellfish Growing Waters on
the East Coast of the United States," 1989 "The
Quality of Shellfith Growing Waters in the Gulf of
Mexico." 19s and "The Quality of Shellfish
i"ng Waters on the West Coast of the United
states" 19s9


CWA, discharges of storm water
associated with industrial activity must
meet all applicable provisions of CWA
sections 402 and 301, including
technology-based requirements and any
necessary water quality-based
requirements. Permits for discharges
from municipal separate storm sewer
systems may be issued on a system- or
jurisdiction-wide basis and must meet a
new statutory standard requiring
controls to reduce pollutant discharges
to the maximum extent practicable
(MEP).
Phase II of the storm water program
covers all storm water discharges not
addressed under the five Phase I classes
described above. Under the current
provisions of section 402(p), the existing
statutory prohibition against permitting
Phase II storm water discharges expires
on October 1, 1992 (see appendix B).
Under CWA section 402(p)(5), EPA, in
consultation with the States, is required
to conduct two studies on Phase II storm
water discharges for which permits
cannot be required before October 1,
1992. The first study will identify those
sources or classes of discharges that
may be addressed in Phase II and
determine the nature and extent of
pollutants in such discharges. The
second study is to establish procedures
and methods to control Phase II storm
water discharges to the extent necessary
to mitigate impacts on water quality.
These studies have not been completed.
Under section 402(p)(6), EPA, in
consultation with State and local
officials and based on the two studies, is
required to issue regulations by October
1, 1992, which designate particular
sources or classes of Phase II storm
water discharges to be regulated to
protect water quality and which
establish a comprehensive program to
regulate such designated sources. This
program must establish priorities,
requirements for State storm water
management programs, and expeditious
deadlines. The program may include
performance standards, guidelines,
guidance, and management practices
and treatment requirements, as
appropriate.
The approach mandated by section
402(p)(2) is fully consistent with the
intent and requirements of Section 319
of the WQA of 1987. Section 319 was
enacted to require States to prevent and
control nonpoint source pollution.
Under section 319 States are required
to submit Nonpoint Source Assessment
Reports identifying State waters which,
without additional control of nonpoint
sources of pollution, cannot be expected
to attain or maintain designated uses.
States were also required to prepare and
submit for EPA approval a statewide


management program for controlling
nonpoint source water pollution to
navigable waters within the State and
improving the quality of such waters to
levels sufficient for attaining or
maintaining applicable water quality
standards or goals. Furthermore, the
State program submittal was to identify
specific best management practices and
measures which the state proposes to
implement, in the first four years after
program submission, to reduce pollutant
loadings from identified nonpoint
sources to levels required to achieve the
stated water quality objectives.
Although the State nonpoint source
programs are not enforceable under
Federal law, States were encouraged to
adopt both regulatory and non-
regulatory approaches under State and
local law. Section 319(b)(2)(B) specifies
that a combination of "non-regulatory or
regulatory programs for enforcement,
technical assistance, financial
assistance, education, training,
technology transfer, and demonstration
projects" may be used, as necessary, to
achieve implementation of the best
management practices or measures
identified in the section 319 submittal.
To date, all States have approved
section 319 assessments and approved
management programs. EPA has
awarded approximately $3.8 million in
FY90 funds, $51 million in FY91 funds,
and is in the process of awarding $52.5
million in FY92 funds to assist States in
implementing the section 319 programs.
EPA expects that State nonpoint source
management programs will be revised
and refined periodically in response to
re-evaluated priorities and new
strategies and technologies.
Numerous States and local
governments have implemented
regulations and enforceable policies to
control nonpoint source pollution. States
such as Delaware and Florida as well as
local governments such as the Lower
Colorado River Authority are
aggressively pursuing storm water
management goals through numerical
treatment standards for new
development. Many States and local
governments have enforceable erosion
and sediment control regulations. On a
broader scale, nonpoint source pollution
is being addressed at the watershed
level by programs such as those being
implemented by the State of Wisconsin
and the Puget Sound Water Quality
Authority and the states which are
parties to the International Agreement
on the Great Lakes. A number of
individual States and local communities
have adopted legislation or regulations
like Maryland's Critical Areas Bill
which limits development and/or


41345




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41346 Federal Register / Vol. 57, No. 175 / Wednesday, September 9, 1992 / Proposed Rules


, requires special management practices
in areas surrounding water resources of
special concern. California has also
recently created Storm water
management districts to better address
the control of nonpoint source pollution.
A further development in the area of
Federally-mandated nonpoint source
management occurred in 1990 with the
enactment of section 6217 of the Coastal
Zone Act Reauthorization Amendments
(CZARA). Section 6217 provides that
States with approved coastal zone
management programs must develop
and submit to EPA and NOAA for
approval a coastal nonpoint pollution
control program. Failure to submit an
approvable program will result in the
loss of Federal grants under both the
Coastal Zone Management Act and
section 319 of the CWA. State nonpoint
pollution control programs must also
include enforceable policies and
mechanisms which ensure
implementation of the management
measures throughout the coastal
management area. Management
measures as defined in section
6217(g)(5) are: "Economically achievable
measures for the control of the addition
of pollutants from existing and new
categories and classes of nonpoint
sources of pollution, which reflect the
greatest degree of pollutant reduction
achievable through the application of
the best available nonpoint pollution
control practices, technologies,
processes, siting criteria, operating
methods, or other alternatives."
The section 6217(g) guidance was
issued for public comment in May, 1991.
Final guidance is expected by October,
1992. The technology-based approach
used in the guidance provides State
Officials flexibility to meet the
management measures using best
management practices identified in the
guidance or other methods and
strategies which achieve equivalent or
higher levels of pollutant control. If the
technology-based approach fails to
achieve and maintain applicable water
quality standards and protect
designated uses, additional management
measures are required under CZARA
section 6217(b)(3). Congress mandated a
technology-based approach founded on
technical and economic achievability
under the rationale that neither States
nor EPA have the money, time, or other
resources to create and implement a
program which depends on establishing
cause and effect linkages between
particular land use activities and
specific water quality problems.
Nonpoint sources addressed in the
proposed guidance include: urban runoff
from both developing and developed


areas, roads, highways and bridges,
agriculture, forestry, marinas,
hydromodification, dams and levees.
C. Current (Phase I) Storm Water
Permitting Program
EPA promulgated permit application
regulations for Phase I storm water
discharges on November 16,1990 (55 FR
47990). The November 16, 1990
regulations established the scope of the
Phase I storm water program by defining
two major classes of storm water
discharges identified under section
402(p)(2)(B), (C), and (D) of the CWA:
Storm water discharges associated with
industrial activity;2 and discharges from
municipal separate storm sewer systems
(MS4s) serving a population of 100,000
or more.3 In addition, the November 16,
1990 regulations established permit
application requirements, including
deadlines for these two classes of
discharges (for a summary of Phase I see
appendix A).
The November 16, 1990 regulations
defined municipal separate storm sewer
system serving a population of 100,000
or more to include municipal separate
storm sewers within the boundaries of
173 incorporated cities, and within
unincorporated portions of 47 counties
that were identified as having
populations of 100,000 or more in
unincorporated, urbanized portions of
the county.4 In addition, the regulations
allowed for additional municipal
separate storm sewers to be designated
by the Director of the NPDES program

as being part of a large or medium MS4.
The November 16, 1990 regulations
establish comprehensive two part
permit applications for discharges from
large or medium MS4s. The permit
application requirements for large and
medium MS4s, among other things,
require municipal applicants to propose
municipal storm water management
programs to control pollutants to the
maximum extent practicable and to

On June 4.1992 the United States Court of
Appeals for the Ninth Circuit found that EPA's
rational for exempting construction sites of less
than five acres and certain uncontaminated storm
water discharges from light industrial facilities from
Phase I of the storm water program to be invalid
and has remanded these exemptions for further
proceedings (see Naturl Resources Defense
Council versus EPA No. 91-70176).
3 Consistent with Section 402(p)(2) of the CWA,
the November 16, 1990 regulations address two
subclasses of municipal separate storm sewer
systems serving a population of 100,000 or more.
Large municipal separate storm sewer systems are
defined as systems serving a population of 25000
or more (see 40 CFR 122.2(b)(4)). Medium
municipal separate storm sewer systems are
defined as systems serving a population of 100,000
or more, but less than 250,000 (see 40 CFR
122.2(b)(7)).
4 See appendices P. G. I and I to 40 CFR part
122.


effectively prohibit non-storm water
discharges to the MS4.6
The November 16,1990 regulations
also defined the term "storm water
discharges associated with industrial
activity" to include 11 categories of
industrial facilities (see 40 CFR
122.26(b)(14)). The November 16, 1990
regulations establish two sets of
application requirements for storm
water discharges associated with
industrial activity: Individual
applications and group applications. In
addition, the notice recognizes a third
set of application procedures for storm
water discharges associated with
industrial activity referred to as "notice
of intent" (NOI) requirements associated
with general permits.
The Phase I storm water program
takes two very different approaches to
defining the roles of EPA and authorized
NPDES States in controlling pollutants
in storm water discharges. With respect
to permits for large and medium MS4s,
the efforts of the NPDES permitting
authority (EPA or an authorized NPDES
State) are directed to ensuring that
municipalities develop and implement
storm water management programs to
control pollutants to the maximum
extent practicable. Municipal programs
address the control of pollutants in
storm water from all areas within the
boundaries of the MS4 that discharge to
the system, including privately-owned
lands, as well as modifying municipal
activities (e.g. road deicing and
maintenance, flood control efforts,
maintenance of municipal lands, etc.) to
address storm water quality concerns.
The Agency has defined the role of
municipalities under this program in a
flexible manner that allows local
governments to assist in defining
priority pollutant sources within the
municipality, and to develop and
implement appropriate controls for such
discharges. With respect to permits for
storm water discharges associated with
industrial activity, the NPDES permitting
authority has a more direct role in
regulating facilities.6
While today's request for comments
focuses on developing Phase II of the
storm water program, readers may find
that a brief summary of progress to date

See 40 CFR 122.2(d)(2)(iv).
NPDES permits for discharges from large and
medium MS4s will establish municipal
responsibilities for assisting EPA and authorized
NPDES States in implementing controls to reduce
pollutants in storm water discharges associated
with industrial activity which discharge through
large and medium MS4s. A more detailed
description of the role of municipalities in
addressing industrial storm water sources under
this Federal/State/Municipal partnership, is
provided at 56 FR 40972 (August 19, 1991).









Federal Register / Vol. 57, No. 175 / Wednesday, September 9, 1992 / Proposed Rules


in implementing the first phase of the
program would be helpful. Part of
current implementation activities
include outreach efforts and two
rulemakings discussed in more detail
below which are specifically designed to
provide more flexibility and minimize
regulatory and administrative burdens
where possible.
As discussed above, the November
1990 storm water rule provided for three
different options for storm water
discharges associated with industrial
activity to seek coverage under the
program: individual, group, and general
permit applications. Since November
1990, there has been a great deal of
activity as EPA and the States have
worked with the regulated community to
provide guidance and implement the
program. The Agency has established a
four tier risk-based storm water
permitting strategy which emphasizes
the use of general permits (April 2, 1992.
(57 FR 11394)). As part of the strategy,
EPA called for the development of State
storm water management programs to
track permit issuance, provide for
prioritization of risk, and create
baselines against which to assess
environmental results. As part of the
same rule, the Agency extended the
deadline for Part 2 of group applications
until October 1,1992, and also deferred
regulation of storm water discharges
from industrial activities owned or
operated by municipalities with a
population under 100,000 until Phase 2 of
the program, pursuant to section 1068(c)
of the Intermodal Surface
Transportation Efficiency Act of 1991. In
providing for greater flexibility, reduced
burdens, extended deadlines, and
deferred regulation, this recent storm
water rulemaking addresses many of the
goals underlying the President's January
28, 1992 request to review existing
regulations.
Since November 1990, the Agency has
received over 1,200 Part I group
applications representing more than
60,000 facilities. EPA is currently
processing these applications. Final
decisions have been reached on over
1,000 to date. Approximately 75% have
been approved, 20% withdrawn or
determined not to be covered, and 5%
denied. Part I group applications were
due on September 30, 1991. Part II
sampling information from approved
groups is due on October 1, 1992.
At the same time that EPA has been
receiving and processing group
applications, States have been actively
moving to provide for storm water
general permit issuance. When the
storm water application rules were
issued in November 1990, only 17 out of


39 States authorized to administer the
NPDES program were also approved to
issue NPDES general permits. Since
then, an additional 16 States have
requested and received Federal
approval to issue general permits. Over
two thirds of the States that now have
general permit authority are presently
developing specific general permits to
cover storm water discharges.
For the 12 States without NPDES
authority, EPA is in the process of
issuing storm water general permits that
rely heavily upon industrial facilities
developing and implementing their own
storm water pollution prevention plans.
As part of the four tier risk-based
permitting strategy referred to above
and discussed in more detail in the
Agency's April 2, 1992 notice, EPA
believes that the majority of storm water
discharges associated with industrial
activities should be covered by general
permits. The Agency urges all
authorized NPDES States without
general permit approval to obtain
NPDES general permit authority.7 EPA
places a high priority on this effort and
is providing direct technical guidance
and assistance to support States both in
obtaining general permit approval and
in developing specific general storm
water permits.
With regard to guidance, training, and
outreach, EPA has undertaken a number
of efforts to provide technical assistance
and also to get public input on ways to
streamline the existing program. In the
area of guidance, EPA has published
and distributed thousands of municipal
and industrial permit application
manuals in addition to numerous
summaries, fact sheets and work shop
materials over the past eighteen months.
The Agency has issued additional
guidance on storm water sampling,
pollution prevention plan development,
and storm water best management
practices (BMPs), and is developing
guidance for part 2 municipal
applications. A list of EPA technical
guidance, summaries, and storm water
fact sheets can be obtained by calling
the Agency's storm water hotline at
(703) 821-4823.
In the area of training and outreach,
EPA staff has participated in over 60
workshops and presentations
throughout the country, training
permitting authorities and educating the
regulated community. For example, EPA
Regions held fourteen public hearings to
receive public comment on the Agency's
proposed general permits in August and
September of 1991. EPA held an

SCurrently, DE IA. KS, MI, NV, NY, OH. SC, VT
and the Virgin Islands have authorized NPDES
programs, but do not have general permit authority.


additional 26 storm water workshops
across the country this summer and
would welcome hearing from groups or
organizations interested in receiving
workshop materials for further in-house
or local training.
While EPA recognizes the importance
of ongoing training and outreach efforts
to provide information on the storm
water program, the Agency also regards
these activities as an effective
mechanism for getting feedback on the
program and identifying areas for
further improvement. The new guidance
documents referred to above and
presently being developed reflect input
from States and the regulated
community on high priority areas
requiring clarification and further
technical assistance.
In addition to these activities, EPA
has recently completed a study, in
conjunction with the Rensselaerville
Institute, to obtain direct public input
and develop recommendations for
streamlining the program and making it
more effective. This study has two
objectives. The first is to develop
recommendations to streamline program
implementation under existing
regulations and legislation (Phase I). The
second is to develop cost-effective
options for addressing risks from storm
water sources not currently required to
be permitted that could potentially be
addressed under Phase II of the storm
water program.
Under the first objective, the
Rensselaerville Institute sponsored 6
focus groups across the country with
members representing state and local
government, the regulated community,
and environmental interests for
uninterrupted full day discussions on
ways to improve the storm water
program. Five key issues were raised by
all groups: (1) Groups felt that EPA has
not been very clear about the intended
goals of the regulations and should
communicate storm water risks,
objectives, and requirements more
clearly to the general public as well as
the regulated community, (2)
participants noted that the cost of
program implementation is significantly
higher than original EPA estimates and
there is great concern regarding the real
costs of the program and of achieving
compliance, (3) there was consensus
that EPA and States must accelerate
general permit issuance and focus on
general permits to achieve efficient
implementation of the program, (4)
participants felt that technical outreach
should be targeted at the State and local
level as opposed to the national level
and should provide better guidance on
the regulations and how to implement


___J


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41348 Federal Register / Vol. 57, No. 175 / Wednesday, September 9, 1992 / Proposed Rules
I I IIII I


them, and (5) groups noted that coverage
' under certain industrial storm water
categories should be clarified.' EPA
agrees with these recommendations and
is taking steps, some of which are
outlined above, to follow up in each of
these areas.
The second objective of the
Rensselaerville study, consistent with
the purpose of today's notice, is to get as
much input as possible on different
options for identifying and addressing
those Phase II storm water discharges
not regulated under the current program.
Under the study, however, the
mechanism for encouraging feedback
was more targeted and interactive. The
Rensselaerville Institute has obtained
input from national experts
(representing permitting authorities, the
environmental community, and
regulated interests) and then followed
up with a series of 3 expert discussion
forums that were open to the public in
June.
The public meetings were held in
Denver, San Francisco and Washington,
DC. Attendees were divided into task
teams and asked to develop their own
strategy for addressing Phase II sources.
There were 16 task teams: Five each at
the Denver and San Francisco meetings,
and six in Washington, DC. They were
given a strategy template to guide them
in their discussion, but were not
confined to the template in developing
their strategies and recommendations.
Each team considered and then
presented the option they had developed
over a four hour period. There were
common strategy characteristics
mentioned across groups within
meetings and also across meetings. The
recommendations of the focus groups
covered four specific areas: Targeting
strategies, controls that should be put in
place, timetable, and the role of EPA in
Phase II. The recommendations made by
focus groups regarding the first three
areas are discussed below along with
the options presented for comment.
With regard to the role of EPA,
participants identified the areas of
responsibility they felt it would be
appropriate for EPA to assume under
Phase II. Their recommendations can be
classified by four common themes: (1)
Teams felt that EPA should provide
technical assistance, information
dissemination, and do any research

The regulatory definition of storm water
discharge associated with industrial activity
identifies 11 categories of industrial facilities (see 40
CFR 122.26(b)(14)). In particular, category viii
(certain transportation facilities) and category xi
(certain manufacturing facilities with materials and/
or materials handling equipment exposed to
precipitation) were identified as needing
clarification.


necessary as a part of Phase II; (2)
participants suggested that EPA should
provide funding for research or
demonstration projects, but not for
program implementation; (3) groups
stressed that EPA should set broad
guidelines for the program, but allow
State and local governments to
determine the level of specificity needed
to effectively implement the program;
and (4) teams felt that EPA should be
responsible for training regulators in the
program.
H. Today's Notice
A Purpose and Intent
CWA sections 402(p)(5) and (6)
require EPA to identify storm water
discharges not covered under Phase I
which should be regulated to protect
water quality.* The purpose of this
notice is to solicit public comment on
ways to implement the second phase of
the storm water permitting program for
sources and activities not regulated
under the existing program. EPA is
seeking comments on approaches for
meeting CWA Phase II storm water
requirements while at the same time
minimizing the economic impacts and
regulatory and administrative burdens
associated with additional Phase II
storm water controls. There are a
number of ways to identify additional
categories of storm water activities for
further controls and EPA requests
comment on the alternatives listed
below as well as on any other
approaches that may not be identified in
today's notice.
B. Alternative Approaches
EPA is interested in comments from
the general public, state and local
government, the regulated community
and environmental groups on each of
the options outlined below. The goal of
the CWA is to restore and maintain the
chemical, physical, and biological
integrity of the Nation's waters. In
practice, programs implemented under
the Clean Water Act have two basic
goals: To reduce pollutant loadings to
the environment and to require more
stringent controls where necessary to
assure attainment of State water quality
standards and designated uses. These
goals are compatible. However, the
specific regulatory strategy and
pollution reduction alternatives to be

SSection 502(14) of the CWA excludes
agricultural storm water runoff from the definition
of point source. Section 402(1)(2) prohibits EPA from
requiring an NPDES permit for certain
"uncontaminated" storm water discharges from
mining sites and oil and gas operations. EPA cannot
regulate these discharges under section 402(p)6) of
the CWA.


chosen for addressing Phase II storm
water discharges could have a large
impact on the size of the regulated
universe and regulatory burden
associated with the program.
To generate discussion and input from
commenters, today's notice discusses
several alternative approaches for
controlling storm water discharges from
currently unregulated sources under
Phase II of the storm water program. A
number of different control strategies,
with variations in scope and timing, are
outlined below. They range from
comprehensive permitting of all
municipal, light industrial, and
commercial activities that generate
storm water runoff to little or no NPDES
permitting of Phase II sources.
A major distinction between several
of the options listed below is whether
Phase II efforts should focus on
developing requirements for targeted
municipalities to develop source
controls and management programs for
storm water discharges within their
jurisdictions (for example, see options
(b) and (c) below) or whether Phase UI
should, instead, focus on point source
discharges of storm water without
reference to the municipality in which
they may be located. Under the first
approach, EPA would develop NPDES
requirements that required targeted
municipalities to develop and implement
storm water management programs
which address storm water discharges
within their jurisdiction 1o to the
maximum extent practicable. This
approach would allow for flexibility
based on local factors, but could lead to
varying levels of control from one area
to another. EPA requests comments on
the ability of municipalities to
effectively regulate storm water
discharges. In addition, the Agency
requests comment on appropriate
funding mechanisms for municipal
programs, in particular the feasibility of
implementing storm water utilities.
which are currently being used in more
than 100 communities nationwide.'
To facilitate comment and analysis,
the following discussion is organized in
terms of three issues: Targeting, control
strategies, and deadlines. Each of these
areas overlap and any final decision
must reflect choices from each group.
However, the objective is to solicit input

10 One Issue that needs to be resolved is whether
targeted municipalities should be responsible for
controlling all priority storm water discharges
within their jurisdiction or only those that discharge
directly to the MS4.
For more information see "Storm Water
Utilities: Innovative Financing for Storm Water
Management". EPA. Water Policy Branch. OPPW
1992.






Federal Register / Vol. 57, No. 175 / Wednesday, September 9, 1992 / Proposed Rules


on three basic questions. First, what
should be covered under Phase II; that
is, what additional municipal separate
storm sewer systems, municipal
industrial activities, commercial, light
industrial, retail, or residential activities
not presently covered under Phase I of
the storm water program should be
targeted or identified as needing
additional controls? Second, what
control strategies should be developed
and implemented to address these Phase
II activities? Third, what deadlines or
time frames should apply in
implementing Phase II of the storm
water program?
In addressing each of these questions,
commenters are requested not only to
provide their views on appropriate
alternatives (including approaches that
may not be included in this notice), but
also where possible detailed rationales
and additional data or other information
which address the practical,
administrative and legal feasibility and/
or the environmental benefits, of a
particular option. In addition, each of
the approaches presented could be
combined with others to achieve
specific environmental objectives. For
example, dischargers of specific.
pollutants in particular water bodies
could be targeted for permits or more
stringent controls. Along with input on
individual options EPA requests
comments on possible combinations or
other approaches not outlined above.
Commenters are also asked to address
the roles and responsibilities of Federal,
State and local governments under
various approaches, particularly with
respect to: (1) Identifying approaches
that target MS4s in currently
unregulated municipal areas as needing
permits, and (2) approaches that identify
classes of individual facilities (e.g.
commercial or retail facilities) as
needing permits.
The Agency also requests input on
what type of information should be used
in identifying sources to be covered and
whether commenters believe there is
presently sufficient information or
monitoring data at the state and local
level to expeditiously implement a
Particular option listed below. If on a
national or regional basis there are not
sufficient data, the next question to be
addressed is whether a comprehensive
monitoring and data gathering effort is
warranted to assure effective
implementation of one approach over
another. In other words, there may be a
trade off between: (1) Near term general
taeting approaches combined with
Bfieble control strategies based on
information currently available, and (2)
a heavier reliance on longer term


specific geographic, watershed, or water
body related targeting mechanisms
which may require more comprehensive
data gathering efforts on both a facility
and stream reach basis.
1. Targeting
(a) Seek amendments to the CWA to
eliminate Phase II and use designation
authority to bring additional sources
underPhase I. Section 402(p)(2)(E)
presently provides that EPA or a State
may designate non-industrial storm
water discharges and discharges from
MS4s other than those serving a
population of 100,000 or more for control
under Phase I where the discharge
contributes to water quality violations
'or is a significant contributor of
pollutants to waters of the U.S. Some
commenters may conclude that the
remaining unregulated discharges of
storm water (associated with smaller
municipalities, commercial activities,
and some retail or residential activities)
constitute, on the whole, a negligible
source of environmental risks, relative
to the discharges already regulated.
Under this option, Congress would
amend the CWA to eliminate section
402(p)(6) (Phase II requirements) as a
part of the NPDES program and expand
use of the existing designation authority
under 402(p)(2)(E) to designate
individual or classes of storm water
activities on a category, watershed,
stream reach, loadings, or other basis
for specific regulation under existing
Phase I requirements. Under this option,
those storm water activities not
designated for Phase I controls could be
addressed by an alternative means,
possibly under the State nonpoint
source management programs funded
under section 319 of the CWA or coastal
nonpoint pollution control programs
developed pursuant to section 6217 of
the CZARA. The Agency requests
cd6nments on: (*Whether State
programs funded under Section 319 can
better ensure appropriate control of
diffuse pollutant sources and; (2)
whether heavier reliance on State
nonpoint source programs to address
Phase II storm water point source
discharges would have adverse impacts
on States' program resources and the
ability of States to address agricultural
sources. The selective nature of this
designation option could reduce the
potential economic impact on the
economy and small entities. However,
using 402(p)(2)(E) may be viewed by
some commenters as a reactive
approach which does not recognize the
advantages of prevention of storm water
pollution problems over remediation of
these problems after they have been
identified. This approach may also


increase the administrative burden on
States and local government to identify
and undertake the necessary
administrative process to include
additional storm water activity under
Phase I.
(b) Identify targeted MS4s as needing
an NPDES permit under section
402(p)(6) of the CWA. The Phase I MS4
program currently only applies to
municipal separate storm sewer systems
serving a population of 100,000 or more.
EPA has defined the scope of these
Phase I requirements to specifically
identify 173 incorporated cities with a
population of 100,000 or more and 47
counties with a population of 100,000 or
more in unincorporated, urbanized
areas.2 In general, this approach
focuses on core cities of large
metropolitan areas, but with the
exceptions of 47 counties addressed,
does not address urban fringes or
suburban areas in large metropolitan
areas, urbanized areas without large
core cities, or smaller isolated cities or
population centers. 1 EPA requests
comments on factors that should be
considered when evaluating options for
addressing Phase II MS4s.14


= The 220 cities and counties addressed by these
definitions have a combined population of over 87.5
million people under the 1990 Census. However, a
significant percentage of the population of the 220
municipalities are served by combined sewers (not
addressed by the storm water program), which are
found primarily in areas of older development.
The 1990 Census indicates that 87.3 million
people lived in areas designated as urbanized areas
but outside of incorporated cities with a population
of 100,000 or more. Portions of over 5,400
incorporated cities, towns and villages. 900 counties
and about 1.500 minor civil divisions
(unincorporated towns and townships) are In Phase
I municipalities that are part of urbanized areas.
14 EPA outlined seven factors it considered when
defining the scope of large and medium MS4s (see
December 7.1988 (53 FR 49444), and November 16,
1990 (55 FR 41038)). These factors included: the
advantages of developing system-wide storm water
management programs for municipal systems; the
inter-jurisdictional complexities associated with
municipal governments; the fact that many
municipal storm water programs have traditionally
focused on water quantity concerns, and have not
evaluated water quality concerns: the geographic
basis necessary for planning comprehensive
management programs to reduce pollutants in
discharges from MS4: the geographic basis
necessary to provide flexibility to target controls on
areas where water quality impacts associated with
discharges from MS4s are the greatest and to
provide an opportunity to develop cost effective
controls the need to establish a reasonable number
of permits: Congressional intent to allow the
development of jurisdiction-wide, comprehensive
storm water programs with priorities given to the
most heavily populated areas of the country. The
Agency requests comment on which of these factors
should be considered in identifying Phase 11 MS4
sources.


41349


41349






41350 Federal Register / Vol. 57, No. 175 / Wednesday, September 9, 1992 / Proposed Rules


The Agency also requests comment on
the advantages of municipalities
associated with urbanized areas
S coordinating storm water management
efforts on a regional basis. The Agency
notes that a number of municipalities
have developed regional administrative
approaches to flood control
management.15 Regional administrative
approaches appear to provide
opportunities for municipalities to lower
overall administrative burdens,
consolidate efforts to study or evaluate
approaches, and adequately plan cost-
effective approaches to consider and
address the needs of all represented
municipalities. The Agency requests
input on how it could or should
encourage the development and use of
regional approaches to storm water
management under the NPDES program.
Specifically, EPA requests comments on
the following targeting options as well
as any that may not be included in this
notice.
(i) Focus on population. Expand
coverage to address additional
municipalities based on population.
Following the Phase I approach,
coverage of municipalities could be
expanded by lowering the minimum
population requirement across the board
or by designating additional
municipalities or municipal systems by
S name. EPA requests comments on the
appropriate role of county governments
and appropriate ways to characterize
the population of counties under this
approach.'6 This approach controls
more sources of storm water, but
imposes regulatory burdens on
additional municipal entities.
(ii) Focus on population density.
Alternatively, EPA could focus on the
population density of metropolitan areas
instead of the population within a
particular municipality or municipal
system, and require permits for
discharges from municipal separate
storm sewers in areas of a specified
density. Urban storm water runoff is
related to the density of urban
development, the increase in impervious
areas, and the reduction in the area of
recharge and infiltration zones. EPA
requests comment on the use of
urbanized areas designed by the Bureau
of Census as a tool for characterizing

For more information see: William A. Macaitis,
"Regional Storm Water Management Trends", and:
L Scott Tucker, "Current Programs and Practices in
Storm Water Management", Water and the City; the
Next Century. Public Works Historical Society,
1991.
ie The 1990 Census indicates that 447 counties
have a population of 100,000 or more. The current
S definitions of large and medium MS4 address 47 of
these counties not already covered by Phase I of tho
program.


population density and development
patterns. 7
(iii) Focus on population growth.
Focussing on population growth in
addition to, or in place of, population
density might be an additional
consideration in implementing this
option.18 Studies have shown that it is
much more cost effective to develop
measures to prevent or reduce
pollutants in storm water during new
development than it is to correct these
problems later on.19 In addition,
'appropriate storm water measures for
new development can prevent or
minimize irreversible degradation to
surface waters. This approach might
serve to minimize the impact of small
and lightly-developed population
centers, but it would still increase the
burden on a number of municipalities
not presently regulated under Phase I.
(c) Continued reliance on Phase I
MS4s to control Phase II sources which
discharge through their system. Under
this approach, EPA would generally not
designate additional individual sources
(such as commercial and light industrial
sources) which discharge through a
large or medium MS4 as needing their
own NPDES permit. Instead, EPA would
continue to rely on municipalities to
identify priority storm water discharges
and develop appropriate controls for
those discharges as part of requirements
to develop and implement municipal
storm water management programs.
This option addresses some currently
unregulated sources, allows for
flexibility and consideration of local
factors, and avoids duplicative
regulation at the local, national and
State level. This approach also relies on
existing institutional frameworks of

17 The Bureau of Census defines urbanized areas
comprised of a central city (or cities) with a
surrounding closely settled area. The population of
the entire urbanized area must be greater than
50,000 people, and the closely settled area outside
the city, the urban fringe, must have a population
density generally greater than 1,000 persons per
square mile (just over 1.5 persons per acre) to be
included. The Bureau of Census defined 396
urbanized areas in the United States based on the
1990 Census. These urbanized aSeas have a
combined population of 158.3 million, or 83.6 percent
of the nation's total population. However, these
areas only account for 1.5 to 2 percent of the land
surface of the country.
is Most Urban growth occurs in urban fringe
areas outside of large core cities. For example,
between 1970 and 1980. the population in those
partspf Census designated urbanized areas that are
outside of incorporated cities with a population of
100,000 or more increased by 18.9 million. During
This same time period, the population of
incorporated cities with a population of 100,000 or
more (Phase I cities) increased by only 0.6 million.
with the population of many of these cities
decreasing.
i9 For example, see "Results from the Nationwide
SUrban Runoff Program, Vol I-Final Report". EPA.
1983.


municipalities 20 as well as the
institutional framework that EPA
envisions municipalities will develop
pursuant to NPDES requirements.*i
However, it imposes additional
administrative and regulatory costs on
local governments and may result in
varying levels of control among
municipal programs. The Agency
requests comment on whether
municipalities are in the best position
(with assistance from EPA and
authorized NPDES States through
technical guidance) to identify priority
sources which discharge through their
MS4, or whether EPA should attempt to
designate such additional sources as
needing an NPDES permit The Agency
also requests comments on the
appropriate funding mechanisms for
MS4s (e.g. storm water utilities, various
fees, general revenues, etc.), and
opportunities for municipalities to
modify existing functions to address
storm water concerns.
(d) Identify additional Phase II
activities other than MS4s based on
comparative loadings. EPA could use
available information (such as case
studies and other research) to prioritize
Phase II sources in terms of their
relative pollutant loadings as well as the
type and nature of those loadings. On
this basis the Agency could issue
regulations to target those general
activities which contribute the highest
loadings of pollutants to receiving
waters as needing an NPDES permit.
This option is consistent with the
technology-based approach reflected in
the existing CWA. It would provide
more comprehensive coverage and
clarify the program. It would also avoid
expensive and time consuming debates
regarding the specific causal
relationship between a particular storm
water discharge and site by site specific
receiving water quality impact.
However, it would impose further
administrative and analytical burdens in
terms of gathering additional loadings
information on a national basis. This
approach may also result in including

20 Examples of municipal functions that can be
adapted to provide for consideration of storm water
concerns include oversight of new development, fire
safety inspections, pretreatment program
implementation, flood control activities,
management of municipal lands and activities, and
maintenance of public roads.
21 The NPDES regulatory framework for permits
for large and medium MS4s envision that
municipalities will be required to develop and
implement storm water management programs to
reduce pollutants in non-storm water discharges
(e.g. illicit connections and improper dumping);
storm water from residential and commercial areas;
storm water discharges from industrial activities;
and storm water discharges from construction
activities.









Federal Register / Vol. 57, No. 175 / Wednesday, September 9, 1992 / Proposed Rules


more sources than necessary due to
differences in loadings and existing
storm water controls, both structural
and non-structural, across similar
activities. The regulatory burden would
be determined in large part by tie
overall control strategy chosen to
implement this approach.
This approach differs from those
outlined under options (b) and (c) in that
it relies on direct permitting by EPA and
authorized NPDES States rather than
requiring municipalities to develop
programs to address sources. The
Agency requests comments on which
sources of pollutants are better
addressed by specific NPDES permit
requirements rather than through
municipal storm water management
programs required pursuant to NPDES
permits for MS4s. For example,
activities generally located in rural
areas such as feedlots, orchards, and
golf courses most likely are not suited
for control through municipal storm
water management programs required
under permits for MS4s. Although large
feedlots (those subject to effluent
limitations guidelines) presently are
covered under Phase I, smaller feedlots
represent a significant source of
pollutants such as suspended solids,
BOD, and nutrients such as nitrates and
phosphates. In addition, storm water
discharges from commercial activities
such as greenhouses, nurseries, and golf
courses might be more effectively
controlled under a separate NPDES
permit requirement than through a MS4
program. As another example, many
commenters from all levels of State and
local government have expressed
concern about municipalities being
required to control pollutants from State
highways (see November 16, 1990 (55 FR
48041)).
(e) Geographic targeting. EPA could
regulate Phase U storm water activities
on a watershed, waterbody, or regional
basis to protect water quality, control
water quality problems and attain
designated uses in specific areas. EPA
could:
(i) Designate additional municipal
and individual sources for permitting in
specific areas. A key aspect of this
approach would be developing a list of
waters that are not meeting designated
uses due to pollution from storm water
runoff (from section 305(b) reports or
from the section 304(1) list of waters) or
where sensitive waters or outstanding
national resource waters need special
protection. This approach could help to
achieve water quality goals and would
avoid imposing a burden on other
dischargers, but would not be uniformly
Applied on a national basis. This option


is also reactive in nature, and overlooks
the advantages of prevention over
remediation. The availability of
technical information and water quality
data limitations and the administrative
and regulatory burden associated with
collecting and analyzing additional data
would have to be carefully considered in
evaluating the feasibility of this
approach.
(ui Designate additional sources for
permitting or special requirements
within rainfall zones. The nature of
storm water problems varies between
areas with frequent rainfall, where
storm water flows are high with
continual pollutant loadings, and areas
with low or seasonal rainfall, where
intermittent flows carry highly
concentrated loadings of pollutants
accumulated during dry weather which
result in high shock loadings to receiving
waters. This option would recognize
these regional variations and tailor
regulatory requirements for Phase II
discharges (monitoring, best
management practices, reporting) to the
local nature of rain events. However,
immediate environmental benefits could
be delayed due to the inexact nature of
rainfall zones and the scarcity of
comprehensive information upon which
to base regulatory requirements.
(f) Establish requirements for State
storm water management programs.
Under this approach, EPA could develop
requirements for State storm water
management programs under section
402(p)(6) for the CWA which would
require States to identify additional
classes of storm water discharges for
control. This approach may offer the
advantages of additional flexibility for
States to target sources based on State
specific factors (climate, water
resources, development patterns) and
provide additional flexibility in the type
of administrative program developed.
However, the disadvantages of this
approach include the need for
generating additional resources at the
State level at a time when State
capacity is also strained, and possible
disparities in programs in different
States. Such disparities could make it
hard for a State to develop an
aggressive program when neighboring
States have lesser requirements. Further,
this approach may create additional
burdens on EPA to provide adequate
oversight of the State programs. EPA
also requests comments on the
appropriate role of EPA in reviewing
State plans or developing minimum
requirements for State plans and how
that role should change, if at all, for
States without authorized NPDES
programs. The Agency requests


comments on appropriate criteria for
evaluating the adequacy of State
programs, and appropriate procedures
for periodic review and evaluation of
such programs. EPA also requests
comments on whether this approach
could be harmonized with the
requirements of section 402(p)(6) for EPA
to take the lead in developing
management practices and controls for
Phase II sources, or whether this
approach might also require statutory
change.
(g) Rensselaerville focus groups.
There were several common themes
recognized by the focus groups with
regard to identifying potential sources to
be included in Phase II:
(i) Groups suggested that targeting be
done on a watershed basis, with
information gathered as a part of Phase I
used to help identify sensitive
watersheds. It was noted that this type
of targeting approach may require
intergovernmental agreements for
effective implementation.
(ii) Teams emphasized that the focus
of Phase I should be on "bad actors",
i.e. those sources that are known to
cause significant water quality
problems. Sources identified by team
members included: Gas/auto service
industries, transportation, highway
systems, land use development and
agricultural sources. There was a
consensus among groups that facilities
not contributing to impairment of water
quality should be able to gain an
exemption from controls, permits, fees,
and implementation of BMP's. Teams
concluded that SIC categories are an
ineffective way to designate covered
sources and that targeting should be
done based on the degree of risk that a
given facility poses, due to possible
differences between facilities in any one
industry.
(iii) Focus groups recommended that
small municipalities be included in
Phase II but with simplified application
requirements. Participants felt that
municipalities impacting watersheds of
concern or those connected to larger
MS4s should be targeted.
(iv) Participants in the study felt that
EPA should hold off on selecting sources
for Phase H until the Agency has
carefully looked at the date gathered
during Phase I. It was noted that
numerous sources of information are
available which could help determine
targeting priorities, for example, 305(b)
reports, information from Phase I
program sources, NURP, and the first
Report to Congress.


A


4135


41351








41352 Federal Register / Vol. 57, No. 175 / Wednesday, September 9, 1992 /. Proposed Rules


2. Control Strategies
The current Phase I storm water
program for industrial sources is
implemented through the NPDES
program with a heavy emphasis on the
use of general NPDES permits which
require the implementation of best
management practices including
development of site specific pollution
prevention plans. Phase I requirements
for large and medium MS4s focus on
system-wide permits which require the
development and implementation of
municipal storm water management
programs:
Regardless of how additional Phase II
storm water activities are identified-
whether they are designated under
402(p)(2)(E), comprehensively covered,
or selectively targeted for further
controls, a key issue on which EPA
requests comment is what are the
appropriate tools or control strategies to
put in place which assure pollutant
loading reductions and water quality
improvement?
(a) Continued reliance on NPDES
program. One option is the continued
reliance on individual or general NPDES
permits for individual sources, and
system-wide permits for MS4s.
Developing or processing specific
application forms for and issuing
individual permits for all Phase U
sources may well be the most resource
intensive of any control approach.
Consistent with EPA's four tier Phase I
permitting strategy for industrial storm
water sources, individual permits may
be most appropriate in those case
specific situations where a particularly
difficult or complex discharge situation
needs to be addressed. By contrast,
input from the public and regulated
community to date suggests that heavy
reliance on general permits may well be
a very effective alternative within the
NPDES system. EPA solicits comments
on whether continued reliance on
NPDES permitting as the overall control
strategy for Phase II is the most
appropriate approach. An extensive
State and national administrative
NPDES infrastructure already exists and
is being relied upon for Phase I and
reliance on the general permit is
increasingly favored as an appropriate
storm water control strategy. However,
the capacity of the current system with
its existing resources to accommodate a
significant number of additional
permittees has already been called into
question for Phase L A very real issue
exists as to whether the permitting
Agencies have the resources to address
more than a limited number of
additional Phase II permittees.


(b) Continued reliance on nonpoint
source program. Another approach
includes continued reliance on the State
nonpoint source programs under section
319 of the CWA and future reliance on
programs under section 6217 of the
CZARA in coastal areas to control
Phase II storm water sources not
explicitly addressed or designated under
Phase I.
The structure, organization, and
working relationship within EPA and
State offices for the section 319 program
are established and proven successful.
The States have taken the lead under
section 319 to develop assessments of
storm water/nonprofit source impacts
and management programs to implement
controls. EPA has approved all States
assessments, 44 complete management
programs, and portions of all the
remaining State management programs.
The States management programs
typically include continued problem
assessments and monitoring, voluntary
control measures, mandatory control
measures established under State and
local authorities, State funding
assistance, public outreach, technical
assistance, enforcement, targeting of
priority waters, and coordination with
other Federal and State programs and
agencies. Therefore, the section 319
program's potential ability to control
Phase II sources is high. Also, section
319 programs are founded on a
watershed planning and pollution
prevention/source reduction approach
which may be an effective vehicle to
provide program and technical
assistance to State and local
governments.
In addition, the new CZARA program
provides an excellent tool to address
Phase II sources in the coastal zone in a
comprehensive manner. EPA
emphasizes that the goals of the NPDES
and CZARA programs are
complementary. Many of the techniques
and practices used to control urban
runoff are equally applicable to both
programs. While different legal
authorities and geographic coverage
may apply to specific sources, States
have the option to implement CZARA
section 6217(g) management measures
throughout the coastal zone, as long as
NPDES requirements are met for those
entities subject to NPDES requirements.
States outside of the coastal zope may
also voluntarily incorporate the
management measures appropriate to
particular sources or specific problems
into the State's CWA section 319
program.
(c) Mandatory performance
standards, guidelines, management
practices and/or treatment


requirements. An alternative option
might also be to develop a set of
mandatory national Phase II control
guidelines that apply directly to Phase I
storm water activities without a permit.
The national pretreatment categorical
effluent guidelines is an example of this
approach. Permits by rule or general
permits without application or reporting
requirements are a similar concept. A
variation on this approach might include
the development of minimum categories
or classes of BMP's or pollution
prevention approaches with a
requirement that elements from each
class be chosen and implemented on a
facility or system specific basis. At one
level this approach would appear to
reduce the regulatory and administrative
burden associated with submission of
Phase II storm water applications.
However, as a technical matter, it may
be extremely difficult to develop one
national rule that appropriately
addresses all Phase II storm water
activities. Developing such a rule may
take a significant amount of time and
may also entail substantial monitoring
and data collection. A further issue upon
which EPA solicits comment is whether
a national rule would be the most
effective approach given that many
members of the Phase II universe may
not be familiar with national regulations
and may not even be aware that such
requirements apply to them. EPA
recognizes that implementation of
control strategies other than NPDES
permitting would probably require
statutory change and requests comments
on what changes would be appropriate.
(d) Rensselaerville focus groups.
Focus groups identified several common
themes with regard to controls that
should be put in place for Phase II:
(i) Focus groups recommended that if
a permitting process is to be continued
for Phase II sources, NPDES general
permits should be used, and the focus
should be on the implementation of
effective BMP's. Participants felt that
permits should be simpler, less costly,
and that EPA should make absolutely
clear to applicants what information is
required through the use of checklists of
inclusion, a menu of potential BMP's,
and other documents to assist permitees.
The team members again stressed that
exemptions from permitting should be
available for sources not contributing to
water quality problems.
(ii) The teams concluded that
education is often overlooked and that it
should be a primary component of any
Phase II program. Team members felt"
that education is important for all
audiences and that local level education


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Federal Register / Vol. 57, No. 175 / Wednesday, September 9, 1992 / Proposed Rules


for the public and affected industry is
critical to the success of the program.
(iii) There was an agreement among
teams that there should be more
emphasis on voluntary programs,
perhaps similar to those under the 319
nonpoint source program. Groups also
suggested that for facilities that have
contact with storm water, there should
be limited additional governmental
intervention, but rather an emphasis on
pollution prevention incentives, BMP's,
and specific pollution prevention
techniques. Participants stressed that
pollution prevention should be
emphasized, particularly with new
development. Some suggested
prevention methods included: recycling
storm water, good housekeeping
practices, plantings to minimize runoff,
street sweeping of work areas on a daily
basis, storm water collection methods,
coverage of storage areas, changing
manufacturing processes to minimize
pollutants and better controls of air
emissions.
(iv) Groups felt that there should be
correlation between the severity of the
problem and the degree of controls
required and that fines and fee
structures could be used as "carrot-
stick" measures to aid implementation.
3. Deadlines
Section 402(p) presently provides that
the current prohibition against
permitting Phase II sources expires on
October 1, 1992. EPA solicits comment
on the possible options for alternative
deadlines for Phase II permit application
requirements and statutory revisions of
the CWA. One option is for Congress to
extend the current October 1, 1992
deadline for Phase IIsources. Under this
option, EPA requests comment on what
the new Phase II date should be and
why one particular extension is more
appropriate than another. For example,
one possible date might be October 1,
1995, to allow one year for additional
data gathering and public input on
appropriate Phase II sources and control
strategies and then two additional years
to propose and finalize Phase II
regulations.
Another strategy might be to adopt a
phased set of Phase II deadlines with
igh priority storm water sources
covered first and lower risk sources
addressed at a later date.
A third approach follows option 1
"ader Targeting; that is, to eliminate the
fhase II deadlines and follow option 1
"direct EPA to follow some other
4tion.
Focus group recommendations from
eRensselaerville study suggested that
minimum of 2-3 years is needed to
"Pare for Phase II, with at least a year




I


dedicated to looking at data gained from
Phase I of the storm water program and
other documents such as the first Report
to Congress. Participants also felt that
the effectiveness of presently used
BMP's needs to be looked at to
determine variations in effectiveness
between different geographic locations
and pollutants.
I. Request for Comments
EPA is requesting comments on all
aspects of the Phase II storm water
permitting program. EPA is soliciting
general comments on environmental
objectives and economic impacts, as
well as specific recommendations and
implementation advice on each of the
options outlined above. Based on
comments received and the results of
the two studies required under CWA
section 402(p)(5), EPA may propose a
rule under section 402(p)(6) or solicit
additional comments on options again
when more data becomes available. In
addition, EPA welcomes data or
information from ongoing studies that
support specific comments or
recommendations.
A. General Issues for Comment
Based on the discussion above and
the President's memorandum on
reducing the burden of government
regulation, EPA requests comment on
the advantages and disadvantages of
each option outlined above as well as
any other potential approaches in terms
of the following factors.
1. How well does the approach
perform with respect to the
environmental goals of protecting water
quality, reducing pollutant loadings, and
achieving designated uses in impaired
waters? EPA requests comment on
which of these approaches most lends
itself to the documentation and
establishment of environmental
baselines and identification of
appropriate environmental indicators
against which to evaluate progress. EPA
specifically solicits input on appropriate
environmental indicators in connection
with any of the approaches outlined
above or identified by a commenter.
2. Does the option balance the need
for regulation to protect/improve the
environment with the desire to minimize
the regulatory burden and maximize the
cost effectiveness of the approach?
3. Does the option help to reduce the
regulatory burden on potential
permitted, while still maintaining
environmental benefits?
4. Does the option help to reduce the
administrative burden on Federal. State
and local government, so that resources
are used to address important
environmental problems efficiently?


5. To what extent does the option
support or provide an incentive or
additional flexibility for implementing
-pollution prevention and other
innovative permit approaches?
6. Does the option allow or encourage
the use of market incentives or trading
to promote greater or more effective
loadings reductions and water quality
improvements?
7. What is the impact of the proposed
approach on small businesses 22 and
communities?
8. does the option allow consideration
of the issue of affordability as a factor in
determining which Phase II sources
should be controlled? For example, some
data indicates that average per capital
income in suburban fringe areas is
substantially higher than in core cities.
Does the option allow this to be factored
in when identifying high priority groups
or selecting appropriate control
strategies?
EPA requests specific implementation
recommendations based on the
respondent's general evaluation of the
options outlined above. EPA also seeks
detailed comments on how the option
will be implemented and ways to refine
the respondent's preferred approach. For
example, address issues of affordability,
cost effectiveness and possible funding
mechanisms and sources, in addition to
providing case examples where
available of successful State or local
implementation of a preferred option.
Respondents should also consider the
need for statutory changes or
rulemaking to implement recommended
approaches.
B. Current Classification of Regulated
Discharges
The current regulatory framework of
Phase I is summarized in appendix A.
This information may help respondents
to understand which types of
municipalities and commercial and light
industrial activities are not currently
regulated under Phase I of the program.
Sources exempted from Phase II and
some sources potentially covered under
Phase II are summarized in appendix B.
IV. Review and Analysis Requirements
Various reviews and analyses are
required to assess the economic or
paperwork impact of new rulemaking
activities under Executive Order 12291.
the Paperwork Reduction Act (44 U.S.C.
3501. et. seq.), and the Regulatory
Flexibility Act (5 U.S.C. 601, et. seq.).

** With respect to impacts on municipalities, the
agency requests comments on options
municipalities have for generating the revenue
required to run such programs.


41353


41353









41354 Federal Register / Vol. 57, No. 175 / Wednesday, September 9, 1992 / Proposed Rules


/.- These assessments are not necessary for
this notice, which merely requests
comments on ways to reduce the
regulatory burden of potential future
rulemaking.
Dated: September 1,1992.
Martha G. Prothro,
Acting Assistant Administrator.
Appendix A. Facilities Covered in Phase
1
1. Industrial Facilities
EPA has defined the term "storm
water discharge associated with
industrial activity" in a comprehensive
manner to address over 100,000


facilities. All storm water discharges
associated with industrial activity that
discharge directly to waters of the
United States or through municipal
separate storm sewer systems are
required to obtain NPDES permits,
including those which discharge through
systems located in municipalities with
populations of less than 100,000.
Discharges of storm water to a
combined sewer system or to a Publicly
Owned Treatment Works (POTW) are
excluded. Facilities with storm water
discharges associated with industrial
activity include: manufacturing/
industrial facilities: construction


operations disturbing five or more acres
hazardous waste treatment, storage, or
disposal facilities; landfills; certain
sewage treatment plants; recycling
facilities; powerplants; mining
operations; some oil and gas operations;
airports; and certain other
transportation facilities. Operators of
industrial facilities that are Federally,
State or municipally owned or operated
(with the exception of certain facilities
owned or operated by a municipality of
less than 100,000 people I that meet the
description of the facilities listed in
122.26(b)(14) (i)-(xi), described below,
must also submit applications.


SUMMARY OF INDUSTRIAL ACTIVITIES COVERED UNDER PHASE I OF THE STORM WATER PROGRAM

40 FR
122.26(bX14)
Subart


() ...................


(iv)..................

(v) ......... .. .....
(vi).......-..........


(vii) ....... .......
(viii).,....-.--..







(ix).................




(x) ........... ......


Facilities subject to storm water effluent limitations guidelines, new source performance standards, or toxic pollutant effluent standards under 40
CFR, Subchapter N (except facilities which are exempt under category (xi)].
Facilities classified as:
SIC 24 (except 2434)-Lumber and wood products.
SIC 26 (except 265 and 267)-Paper and allied products
SIC 28 (except 283 and 285)-Chemicals and allied products.
SIC 29-Petroleum and coal products.
SIC 311-L-eather tanning and finishing
SIC 32 (except 323)-Stone, clay and glass products
SIC 33-Primary metal industries.
SIC 3441-Fabricated structural metal
SIC 373-Ship and boat building and repairing
Facilities classified as
SIC 10-Metal mining.
SIC 11-Anthracite mining.
SIC 12-Coal mining.
SIC 13-Oil and gas extraction.
SIC 14-Nonmetallic minerals except fuels.
Hazardous waste treatment, storage, or disposal facilities, including those that re operating under interim status or a permit under Subtitle C of
the Resource Conservation and Recovery Act (RCRA).
Landfills, land application sites, and open dumps that receive or have received any industrial wastes including those that are subject to regulation
under subtitle D or RCRA.
Facilities involved in the recycling of material, including metal scrapyards, battery reclaimers, salvage yards, and automobile junkyads, including
but limited to those classified as:
SIC 5015-Motor vehicle parts, used.
SIC 5093-Scrap and waste materials.
Steam electric power generating facilities, including coal handling sites.
Transportation facilities covered by the following SIC codes which have vehicle maintenance (including vehicle rehabilitation, mechanical repairs,
painting, fueling, and lubrication), equipment cleaning operations, or airport de-icing operations, or which are otherwise listed in another category.
are included.
SIC 40-Railroad transportation.
SIC 41-Local and suburban transit
SIC 42 (except 4221-25)-Motor freight and warehosing.
SIC 43-U.S. Postal Service.
SIC 44-Water transportation.
SIC 45-Transportation by air.
SIC 5171-Petroleum bulk stations and terminals.
Treatment works treating domestic sewage or any other sewage sludge or wastewater treatment device or system, used in the storage, treatment,
recycling, and reclamation of municipal or domestic sewage, including lands dedicated to the disposal of the sewage sludge that are located
within the confines of the facility, with a design flow of 1.0 Million Gallons per Day (MGO) or more, or required to have an approved pretreatment
program under 40 CFR Part 403. Not included are farm lands, domestic gardens, or lands used for sludge management where sludge is
beneficially reused and which are not physically located in the confines of the facility, or areas that are in compliance with Section 405 of the
CWA.
Construction activity including clearing, grading, and excavation activities except operations that result in the disturbance of less than 5 acres of
total land area which are not part of a larger common plan of development or sale*.
Facilities under the following SICs [which are not otherwise included in categories (i-x)], including only storm water discharges where material
handling equipment or activities, raw materials, intermediate products, final products, waste materials byproducts, or industrial machinery are
exposed to storm water'.
SIC 20-Food and kindred products.
SIC 21-Tobacco products.
SIC 22-Textile mill products.


I In the Intermodal Surface Transportation
Efficiency Act of 1991, Congress provided that


industrial activities owned or operated by be placed into Phase II of the storm water program
municipalities with a population of less than 100000 with the exception of airports, power plants and
uncontrolled sanitary landfills.








Federal Register / Vol. 57, No. 175 / Wednesday, September 9, 1992 / Proposed Rules 41355

SUMMARY OF INDUSTRIAL ACTIVITIES COVERED UNDER PHASE I OF THE STORM WATER PROGRAM--Continued

40 CFR
122.26(b)(14)
Subpart

SIC 23-Apparel and other textile products.
SIC 2434-Wood kitchen cabinets.
SIC 25-Furniture and fixtures.
SIC 265-Paperboard containers and boxes.
SIC 267-Converted paper and paper board products (except containers and boxes).
SIC 27-Printing and publishing.
SIC 283-Drugs.
SIC 285-Paints, varnishes, lacquer, enamels.
SIC 30-Rubber and misc. plastics products.
SIC 31-(except 311)-Leather and leather products.
SIC 323-Products of purchased glass.
SIC 34 (except 3441)-Fabricated metal products.
SIC 35-Industrial machinery and equipment, except electrical.
SIC 36-Electronic and other electric equipment
SIC 37 (except 373)-Transportation equipment
SIC 38-Instruments and related products.
SIC 39-Miscellaneous manufacturing industries.
SIC 4221-Farm products warehousing and storage.
SIC 4222-Refrigerated warehousing and storage.
SIC 4225-General warehousing and storage.
'On June 4, 1992 the United States Court of Appeals for the Ninth Circuit found that EPA's rational for exempting construction sites of less than five acres and
certain uncontaminated storm water discharges from category xi light industrial facilities from Phase I of the storm water program to be invalid and has remanded
these exemptions for further proceedings (see Natural Resources defense Council v. EPA No. 91-70176).
Source: FEDERAL REGISTER, Vol. 55, No. 222, p. 48065, November 16,1990.


2. Municipal Facilities
"Municipal separate storm sewer" is
defined as any conveyance or system of
conveyances that is owned or operated
by a State or local government entity
designed for collecting and conveying
storm water which is not part of a
Publicly Owned Treatment Works. The
application requirements do not apply to
discharges from combined sewers


(systems designed as both a sanitary
sewer and a storm sewer). Municipal
separate storm sewer systems that are
addressed by the November 16, 1990
regulations include storm sewers
located in one of 173 cities with a
population of 100,000 or more; located in
one of the 47 counties identified by EPA
as having large populations in
unincorporated, urbanized areas; and


systems that are designated by the
Director based on consideration of the
location of the discharge with respect to
waters of the United States, the size of
the discharge, the quantity and nature of
the pollutants discharged to waters of
the United States, and other relevant
factors. These are named in Appendices
F-L of the November 16, 1990,
regulation.


INDUSTRIAL AND MUNICIPAL PERMIT APPLICATION DEADLINES

Type of Application Deadline

SIndividual................................... .... ... ............................ ....... ...... ............. October 1, 1992

* Group ..................... Part 1 Part 2
All industrial activities except those owned or operated by a municipality with a September 30, 1991 ................... October 1, 1992
population of less than 250,000..
Industrial activities owned or operated by a municipality with a population of May 18, 1992........................ ....... May 17, 1993
100.000 to 250.000.._
SGeneral Permit NOI............................................................ Deadline established in the general permit, but no later than October 1, 1992
for existing sources.
Part Part2
Large Municipalities....... .. ................... November 18, 1991............................ .... November 16, 1992
Medium Municipalities... .......................................... May 18, 1992..... ....... ........ ........... May 17, 1993


Appendix B. Potential Universe of Phase
1 Dischargers
Phase I potentially includes all point
source discharges of storm water to
waters of the United States (including


Municipal Separate Storm Sewer
Systems) that are not regulated under
Phase I of the itorm water program (See
Appendix A). The following table
illustrates those types of operations


which have been statutorily exempted
from both Phase I and Phase II of the
NPDES storm water program along with
a general list of potential Phase II
sources:


Statutory / Regulatory exemptions:

Geneta categories of sources.......


SNon Point Source Silviculture Activities.
* Agricultural Runoff and Irrigation Return Flows.
* Uncontaminated discharges from Mining, Oil and Gas Operations
* All municipalities with populations less than 100,000.


--......--....-....----.-.....
-










41356 Federal Rester / VoL 57. No. 175 / Wednesday, September 9, 1992 / Proposed Rules


Al industrial activities not regulated under Phase I (incudin those owned/operatd by
municipaities under 100.000) (tank farms. "auxliay facilities).
Commercial activities with industrial components (gas stations, dry cleaners).
SConstruction activity Invoving less than 5 acres *
SLarge parking lots (shopping malls, stadium)
Residential property.
SRecreational areas (aki areas, go courses, amusement par
SLUvestock facilities (stables feedlots not addressed by Phan I regulations a c).
Greenhouses, nurseries.

'On June 4, 1992 the United States Court of Appeals for the Ninth Circuit found that EPA's rational for exempting costruclion ses of e than five acres from
Phase I of the storm water program to be invalid and has remanded the exemption for further proceedings (see NatAau Resowt @efenws Coutrn v. EPA No.
91-70176).
'Feedlots. as a class of facilities, have been associated with high loadings of pollutants such as-suspended solids BOO and nutrient such as nitrogen and
phosphorus, and could be an example of a targeting approach based on high loadings

[FR Doc. 92-21653 Filed 9-8-92; 8:45 am]
BILLING CODE 6560-SO-W




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