[Federal Register: October 7, 2008 (Volume 73, Number 195)]
[Notices]               
[Page 58587-58589]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07oc08-69]                         

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8725-6]

 
Notice of Availability of Final NPDES General Permits MAG07000 
and NHG07000 for Discharges From Dewatering Activities in the 
Commonwealth of Massachusetts (Including Both Commonwealth and Indian 
Country Lands) and the State of New Hampshire: the Dewatering General 
Permit (DGP)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of availability of Final NPDES General Permits MAG07000 
and NHG07000.

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SUMMARY: The Director of the Office of Ecosystem Protection, EPA-New 
England, is providing a notice of

[[Page 58588]]

availability of the final National Pollutant Discharge Elimination 
System (NPDES) general permits for dewatering activity discharges to 
certain waters of the Commonwealth of Massachusetts (including both 
Commonwealth and Indian country lands) and the State of New Hampshire. 
These General Permits replace the Construction Dewatering General 
Permits, which expired on September 23, 2007. The notice of 
availability of the draft NPDES general permits for dewatering activity 
discharges was published in the Federal Register on July 21, 2008 and 
the public notice period ran from July 22, 2008 to August 21, 2008. In 
addition to comments on the draft general permits, EPA also requested 
comments on the cost associated with a limit for total residual 
chlorine (TRC) for discharges containing potable water. No comments 
were received during the public notice period regarding either the 
draft permits or the cost associated with a TRC limit for discharges 
containing potable water.
    The final General Permits establish Notice of Intent (NOI) 
requirements, effluent limitations, standards, prohibitions, and 
management practices for facilities with construction dewatering of 
groundwater intrusion and/or storm water accumulation from sites less 
than one acre and short-term and long-term dewatering of foundation 
sumps. Based on inter-governmental agency review, the following changes 
have been made from the draft permit:
     Appendix III was updated to include the most recent 
information regarding federally-listed threatened and endangered 
species and the process by which permittees determine if the Endangered 
Species Act criteria are met.
     Coverage for and references to discharges originating from 
flushing of potable water lines and pump testing of water wells were 
removed from the General Permit. Facilities with these types of 
discharges retain the ability to apply for coverage under an individual 
permit.
    Owners and/or operators of facilities with dewatering discharges, 
including those currently authorized to discharge under the expired 
General Permits, will be required to submit an NOI to be covered by the 
General Permit to both EPA-New England and the appropriate state 
agency. After EPA and the State have reviewed the NOI, the facility 
will receive a written notification from EPA of permit coverage and 
authorization to discharge under the General Permit. The eligibility 
requirements for coverage under the general permits are discussed in 
detail under Part 3 of the permit. The reader is strongly urged to go 
to that section to determine eligibility. An individual permit may be 
necessary if the discharger cannot meet the terms and conditions or 
eligibility requirements in the permit.

DATES: The general permits shall be effective on the date of signature 
and will expire at midnight, five (5) years from the last day of the 
month preceding the effective date.

ADRESSES: The required notification information to obtain permit 
coverage is provided in the general permits. This information shall be 
submitted to both EPA and the appropriate state. Notification 
information may be sent via USPS or e-mail to EPA at EPA-Region 1, 
Office of Ecosystem Protection, CIP, 1 Congress Street, Suite 1100, 
Boston, Massachusetts 02114-2023 or e-mail address 
GeneralPermit.Dewatering@epa.gov. Notification information shall be 
submitted to the appropriate State agency at the addresses listed in 
Appendix V of the General Permits.

FURTHER INFORMATION CONTACT: Additional information concerning the 
final General Permits may be obtained between the hours of 9 a.m. and 5 
p.m. Monday through Friday, excluding holidays, from Sara Green at 
Green.Sara@EPA.GOV or (617) 918-1574. The general permits may be viewed 
over the Internet at the EPA web site http://www.epa.gov/region1/npdes/
dewatering.html. To obtain a paper copy of the general permits, please 
contact Ms. Green using the contact information provided above. A 
reasonable fee may be charged for copying requests.

SUPPLEMENTARY INFORMATION: 

Regulatory Flexibility Analysis

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    The legal question of whether a general permit (as opposed to an 
individual permit) qualifies as a ``rule'' or as an ``adjudication'' 
under the Administrative Procedure Act (APA) has been the subject of 
periodic litigation. In a recent case, the court held that the Clean 
Water Act (CWA) Section 404 Nationwide general permit before the court 
did qualify as a ``rule'' and therefore that the issuance of the 
general permit needed to comply with the applicable legal requirements 
for the issuance of a ``rule.'' National Ass'n of Home Builders v. U.S. 
Army Corps of Engineers, 417 F.3d 1272, 1284-85 (DC Cir.2005) (Army 
Corps general permits under Section 404 of the Clean Water Act are 
rules under the APA and the Regulatory Flexibility Act; ``Each NWP 
[nationwide permit] easily fits within the APA's definition of a 
`rule.' * * * As such, each NWP constitutes a rule * * * '').
    As EPA stated in 1998, ``the Agency recognizes that the question of 
the applicability of the APA, and thus the RFA, to the issuance of a 
general permit is a difficult one, given the fact that a large number 
of dischargers may choose to use the general permit.'' 63 FR 36489, 
36497 (July 6, 1998). At that time, EPA ``reviewed its previous NPDES 
general permitting actions and related statements in the Federal 
Register or elsewhere,'' and stated that ``[t]his review suggests that 
the Agency has generally treated NPDES general permits effectively as 
rules, though at times it has given contrary indications as to whether 
these actions are rules or permits.'' Id. at 36496. Based on EPA's 
further legal analysis of the issue, the Agency ``concluded, as set 
forth in the proposal, that NPDES general permits are permits [i.e., 
adjudications] under the APA and thus not subject to APA rulemaking 
requirements or the RFA.'' Id. Accordingly, the Agency stated that 
``the APA's rulemaking requirements are inapplicable to issuance of 
such permits,'' and thus ``NPDES permitting is not subject to the 
requirement to publish a general notice of proposed rulemaking under 
the APA or any other law * * * [and] it is not subject to the RFA.'' 
Id. at 36497.
    However, the Agency went on to explain that, even though EPA had 
concluded that it was not legally required to do so, the Agency would 
voluntarily perform the RFA's small-entity impact analysis. Id. EPA 
explained the strong public interest in the Agency following the RFA's 
requirements on a voluntary basis: ``[The notice and comment] process 
also provides an opportunity for EPA to consider the potential impact 
of general permit terms on small entities and how to craft the permit 
to avoid any undue burden on small entities.'' Id. Accordingly, with 
respect to the NPDES permit that EPA was addressing in that Federal 
Register notice, EPA stated that ``the Agency has considered and 
addressed the potential impact of the general permit on small entities 
in a manner that would meet the requirements of the RFA if it 
applied.'' Id.

[[Page 58589]]

    Subsequent to EPA's conclusion in 1998 that general permits are 
adjudications, rather than rules, as noted above, the DC Circuit 
recently held that Nationwide general permits under section 404 are 
``rules'' rather than ``adjudications.'' Thus, this legal question 
remains ``a difficult one'' (supra). However, EPA continues to believe 
that there is a strong public policy interest in EPA applying the RFA's 
framework and requirements to the Agency's evaluation and consideration 
of the nature and extent of any economic impacts that a CWA general 
permit could have on small entities (e.g., small businesses). In this 
regard, EPA believes that the Agency's evaluation of the potential 
economic impact that a general permit would have on small entities, 
consistent with the RFA framework discussed below, is relevant to, and 
an essential component of, the Agency's assessment of whether a CWA 
general permit would place requirements on dischargers that are 
appropriate and reasonable. Furthermore, EPA believes that the RFA's 
framework and requirements provide the Agency with the best approach 
for the Agency's evaluation of the economic impact of general permits 
on small entities. While using the RFA framework to inform its 
assessment of whether permit requirements are appropriate and 
reasonable, EPA will also continue to ensure that all permits satisfy 
the requirements of the Clean Water Act. Accordingly, EPA has committed 
to operating in accordance with the RFA's framework and requirements 
during the Agency's issuance of CWA general permits (in other words, 
the Agency has committed that it will apply the RFA in its issuance of 
general permits as if those permits do qualify as ``rules'' that are 
subject to the RFA).
    EPA anticipates that for most general permits the Agency will be 
able to conclude that there is not a significant economic impact on a 
substantial number of small entities. In such cases, the requirements 
of the RFA framework are fulfilled by including a statement to this 
effect in the permit fact sheet, along with a statement providing the 
factual basis for the conclusion. A quantitative analysis of impacts 
would only be required for permits that may affect a substantial number 
of small entities, consistent with EPA guidance regarding RFA 
certification.\1\
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    \1\ EPA's current guidance, entitled Final Guidance for EPA 
Rulewriters: Regulatory Flexibility Act as Amended by the Small 
Business Regulatory Enforcement and Fairness Act, was issued in 
November 2006 and is available on EPA's Web site: http://
www.epa.gov/sbrefa/documents/rfafinalguidance06.pdf. After 
considering the Guidance and the purpose of CWA general permits, EPA 
concludes that general permits affecting less than 100 small 
entities do not have a significant economic impact on a substantial 
number of small entities.
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    Consistent with the above discussion, EPA has concluded that the 
issuance of the 2008 DGP would not affect a substantial number of small 
entities. An estimated 36 construction projects per year were 
authorized under the 2002 General Permits, a substantial number of 
which were not operated by small entities. The 2008 DGP includes 
expanded coverage for additional types of discharges; however, these 
discharges are temporary in nature. At any one time, fewer than 100 
small entities are expected to be discharging and incurring costs. In 
addition, requirements in the 2008 DGP remain substantially similar to 
those in the 2002 General Permit, except for the addition of total 
residual chlorine (TRC) limits for discharges from municipal sources. 
Therefore, EPA has concluded that the issuance of the 2008 DGP is 
unlikely to have an adverse economic impact on small entities.

    Dated: September 30, 2008.
Robert W. Varney,
Regional Administrator, Region 1.
 [FR Doc. E8-23791 Filed 10-6-08; 8:45 am]

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