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Notice

Proposed National Pollutant Discharge Elimination System (NPDES) Storm Water General Permits for Small Municipal Separate Storm Sewer Systems (MS4s) in New Mexico, Indian Country Lands in New Mexico and Indian Country Lands in Oklahoma and Preliminary Designation Decisions for Small MS4s Outside Urbanized Areas in New Mexico; Notice

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AGENCY:

Environmental Protection Agency (EPA), Region 6.

ACTION:

Notice of availability for comment.

SUMMARY:

The Director of the EPA Region 6 Water Quality Protection Division is proposing to issue National Pollutant Discharge Elimination System (NPDES) general permits for storm water discharges from small municipal separate storm sewer systems (MS4s) located in the State of New Mexico, Indian Country Lands in New Mexico, and Indian Country Lands in Oklahoma. The proposed general permits would authorize the discharge of storm water and certain non-storm water discharges from municipal separate storm sewers. NPDES permit coverage for these discharges is required in accordance with section 402(p) of the 1987 Amendments to the Clean Water Act (CWA) (33 U.S.C. 1342(p)) and EPA regulations. To obtain discharge authorization, operators of MS4s would be required to submit a Notice of Intent (NOI) to be covered by the proposed general permit. The NOI would need to include storm water management program information describing the best management practices (BMPs) which the permittee will implement to control pollutants in the discharges in accordance with the requirements of the CWA and measurable goals for their implementation. In accordance with 40 CFR 122.34(a), the operator would have up to five years to develop and fully implement the storm water management program. The initial storm water management program submittal would likely consist of a combination of ongoing activities and schedules for developing and implementing additional activities to comply with the permit. Annual reporting would also be required to provide information on the status of the implementation of the storm water management program. This Notice announces the availability of the proposed general permits and fact sheet for public comment. Note that while the proposed general permits are structured as a single permit, and may be collectively referred to in the singular as the permit, they are actually three legally distinct permits each covering a different geographical area.

Each of the legally separate and distinctly numbered proposed permits covers one of the areas listed in the table below. Parts 1-7 of the proposed general permit and the Appendices are common to all of the permits, while Part 8 of the permit contains the State, Indian Country Land or other area-specific conditions that make each of the permits unique. The proposed general permits will cover areas within Region 6 where a State or Tribal permitting program has not been authorized under section 402(b) of the CWA. Indian Country includes all lands within Indian reservations, all dependent Indian communities, and Indian allotments. In Oklahoma it also includes lands held in trust for the benefit of Tribes. At this time, no regulated MS4s under EPA jurisdiction are located in Arkansas, Louisiana, or Texas, so permits for these areas are not being proposed by Region 6. Most MS4s in Arkansas, Louisiana, Oklahoma, and Texas are regulated by NPDES-authorized State programs.

Permit Areas

Permit No.Areas of coverage
OKS04000IIndian Country Lands within the State of Oklahoma.
NMS04000IIndian Country lands within the State of New Mexico, except Navajo Reservation lands and Ute Mountain Ute Reservation lands (permitted by EPA Regions 9 and 8, respectively).
NMS040000The State of New Mexico, except Indian Country Lands.

This notice also announces the availability for public comment of the preliminary results of the Region's review of those New Mexico small MS4s with a population of between 10,000 and 50,000 and a population density of 1,000 or more per square mile that are located outside a Urbanized Area for possible designation as a regulated small MS4 (see 40 CFR 123.35(b)). Although EPA is not required to do so, EPA is inviting and will consider comments it receives regarding the small MS4 designation review.

DATES:

The public comment period for the proposed general permits is 45 days starting from the date of today's notice. Interested parties may submit comments on the proposed general permits to EPA Region 6 at the address below, no later than October 24, 2003. Any comments received by EPA Region 6 and EPA's response to these comments will become part of the administrative record for these general permits. The general permits will be effective on the date specified in the final general permit notice that will be published in the Federal Register and will expire five years from the effective date of the final permit.

Comments on the small MS4 designation review process or preliminary decisions must be submitted by October 24, 2003, to the same address.

ADDRESSES:

Comments on the proposed general permits should be sent to Docket No. 6WQ-03-SW01, Attn: Ms. Diane Smith, EPA Region 6, Water Quality Protection Division (6WQ-CA), 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733. Comments may also be submitted in electronic format (Wordperfect 9, MS Word 2000, or ASCII Text formats only, avoiding use of special characters) to the above address or via e-mail to smith.diane@epa.gov. No facsimiles (faxes) will be accepted. Comments on the designation review process or preliminary decisions must reference “MS4 Designation Review.”

Public Meeting Information

EPA Region 6 will be holding two informal public meetings which will include a presentation on the proposed general permits and a question and answer session. Advance notice of the times and dates for these meetings was provided in the Albuquerque Journal and the Daily Oklahoman newspapers on August 9, 2003, and via EPA's Web site at http://www.epa.gov/​region6/​6wq/​npdes/​sw/​hot/​index.htm. Because informal public meetings accommodate group discussion and question and answer sessions, public meetings have been used for many storm water general permits and appear to be more valuable than formalized public hearings in helping the public understand a proposed storm water general permit and in identifying the issues of concern. Written, but not oral, comments for the administrative record will be accepted at the public meetings. Written comments generated from what was learned at a public meeting (or from Start Printed Page 53167discussion with someone who did attend) may also be submitted any time up to the end of the comment period.

Albuquerque, NM—September 11, 2003 @ 1 p.m.

Albuquerque Technical Vocational Institute, Workforce Training Center, Conference Rooms 101 & 103, 5600 Eagle Rock Ave, NE., Albuquerque, NM 87113.

Oklahoma City, OK—September 15, 2003 @ 1 p.m.

Metro Tech Conference Center, Auditorium, 1900 Springlake Drive, Oklahoma City, OK 73111.

Requests for a Public Hearing

Interested persons may also request a public hearing pursuant to 40 CFR 124.11 concerning the proposed general permit. Requests for a public hearing must be sent or delivered in writing to the same address for comments prior to the close of the comment period. Requests for a public hearing must state the nature of the issues proposed to be raised in the hearing. Pursuant to 40 CFR 124.12(a), the Regional Administrator will hold a public hearing if he finds, on the basis of requests, a significant degree of public interest in the proposed permit(s). If the Regional Administrator decides to hold a public hearing, a public notice of the date, time and place of the hearing will be made at least 30 days prior to the hearing. Any person may provide written or oral statements and data pertaining to the proposed general permits at the public hearing.

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FOR FURTHER INFORMATION CONTACT:

Additional information concerning the proposed general permits and preliminary designation decisions may be obtained from Ms. Terry Branch at 214-665-6667 or branch.terry@epa.gov or Ms. Diane Smith at 214-665-2145 or smith.diane@epa.gov. The mail address for both Ms. Branch and Ms. Smith is EPA Region 6, Customer Assistance Branch (6WQ-CA), 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.

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SUPPLEMENTARY INFORMATION:

The proposed general permits and fact sheet, which also includes information on preliminary small MS4 designation decisions, may be obtained from the Internet via the EPA-Region 6 Web site at http://www.epa.gov/​region6/​6wq/​npdes/​sw/​ms4/​index.htm. The proposed general permits are accompanied by a fact sheet which sets forth principal facts and the significant factual, legal, and policy questions considered in the development of the proposed general permits. To obtain a hard copy of these documents or any other information in the administrative record, please contact Ms. Diane Smith or Ms. Terry Branch. Contact information is provided in the ADDRESSES section above. A reasonable fee may be charged for copying requests. When the final general permits are issued, notice will be published in the Federal Register. The final general permits will be effective on the date specified in the Federal Register and will expire five years from that date.

Paperwork Reduction Act: This action does not impose any new information collection burden. These general permits do not impose any information collection requirements beyond those required by EPA regulations (40 CFR 122.26, 122.28, 122.30-.37, 122.41, and 122.48). However, the Office of Management and Budget (OMB) has previously approved the information collection requirements contained in these regulations under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2040-0211, EPA ICR number 1820.03. A copy of each OMB approved Information Collection Request (ICR) may be obtained from the Collection Strategies Division; U.S. Environmental Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460, (202) 566-1672. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

Executive Order 12866: Under Executive Order 12866 (58 FR 51735, October 4, 1993) an agency must determine whether its regulatory action is “significant” and therefore subject to OMB review and the requirements of Executive Order 12866. This Order defines “significant regulatory action” as one that is likely to result in a rule that may have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities; create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. OMB has waived review of NPDES general permits under the terms of Executive Order 12866.

Regulatory Flexibility Act (RFA): Issuance of an NPDES general permit is not subject to rulemaking requirements, including the requirement for a general notice of proposed rulemaking, under 5 U.S.C. 553 (Administrative Procedure Act) or any other law, and is thus not subject to the RFA requirement to prepare a regulatory flexibility analysis. The APA defines two broad, mutually exclusive categories of agency action—“rules” and “orders.” Its definition of “rule” encompasses “an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency * * *” APA section 551(4). Its definition of “order” is residual: “a final disposition * * * of an agency in a matter other than rule making but including licensing.” APA section 551(6). The APA defines “license” to “include * * * an agency permit * * *” APA section 551(8). The APA thus categorizes a permit as an order, which by the APA's definition is not a rule. Section 553 of the APA establishes “rule making” requirements. The APA defines “rule making” as “the agency process for formulating, amending, or repealing a rule.” APA section 551(5). By its terms, then, section 553 applies only to “rules” and not also to “orders,” which include permits.

Unfunded Mandates Reform Act: Section 201 of the Unfunded Mandates Reform Act (UMRA), Public Law 104-4, generally requires Federal agencies to assess the effects of their “regulatory actions” on State, local, and tribal governments and the private sector. UMRA uses the term “regulatory actions” to refer to regulations. (See, e.g., UMRA section 201, “Each agency shall * * * assess the effects of Federal regulatory actions * * * (other than to Start Printed Page 53168the extent that such regulations incorporate requirements specifically set forth in law).”) UMRA section 102 defines “regulation” by reference to 2 U.S.C. 658 which in turn defines “regulation” and “rule” by reference to section 601(2) of the RFA. That section of the RFA defines “rule” as “any rule for which the agency publishes a notice of proposed rulemaking pursuant to section 553(b) of [the APA], or any other law * * * .” As discussed in the RFA section of this notice, NPDES general permits are not “rules” under the APA and thus not subject to the APA requirement to publish a notice of proposed rulemaking. NPDES general permits are also not subject to such a requirement under the CWA. While EPA publishes a notice to solicit public comment on proposed general permits, it does so pursuant to the CWA section 402(a) requirement to provide “an opportunity for a hearing.” Thus, NPDES general permits are not “rules.”

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

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Dated: September 2, 2003.

Oscar Ramirez, Jr.,

Acting Director, Water Quality Protection Division, Region 6.

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[FR Doc. 03-22934 Filed 9-8-03; 8:45 am]

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