[Federal Register Volume 66, Number 193 (Thursday, October 4, 2001)]
[Notices]
[Pages 50646-50651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24904]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-7071-9]
Notice of Proposed NPDES General Permit for Egg Production
Operations in New Mexico, Oklahoma, and on Indian Lands in New Mexico
and Oklahoma NMG800000 and OKG800000
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of draft NPDES general permits.
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SUMMARY: EPA Region 6 is proposing to issue a general NPDES permit
regulating discharges, or potential discharges, from egg production
operations (EPOs). The United Egg Producers (UEP), a farmer cooperative
that represents egg producers nationwide, has entered into an XL
project agreement with EPA. This XL project will allow eligible EPOs to
obtain permit coverage under a general permit, as an incentive for the
industry's large producers to maintain environmentally superior
facilities, if they implement a multi-media environmental management
system (EMS). An EMS controls a range of significant environmental
impacts including those not subject to regulation under the Clean Water
Act, such as odor and pest control. Facilities that do not continue to
comply with their general permit or do not adequately implement their
EMS could be required to obtain individual NPDES permits. The project
also includes a third-party auditing component and on-farm management
practices most likely to result in superior environmental performance.
Each facility's EMS will be required to pass the independent third-
party audit before the facility can apply for coverage under the
general permit.
DATES: Comments on this proposed permit must be submitted by December
3, 2001.
ADDRESSES: Comments on this proposed permit should be sent to the
Regional Administrator, EPA Region 6, 1445 Ross Avenue, Dallas, Texas
75202-2733.
FOR FURTHER INFORMATION CONTACT: Ms. Diane Smith, EPA Region 6, 1445
Ross Avenue, Dallas, Texas 75202-2733, telephone (214) 665-2145. Copies
of the complete fact sheet and proposed permit may be obtained from Ms.
Smith. The fact sheet and proposed permit can also be found on the
Internet at http://www.epa.gov/earth1r6/6wq/6wq.htm. In addition, the
current administrative record on the proposal is available for
examination at the Region's Dallas offices during normal working hours
after providing Ms. Smith 24 hours advanced notice.
Public Meetings
Public meetings on the proposed permit will be held at the
locations listed below. The public meetings will include a presentation
on the draft permit and a question and answer session. Written, but not
oral, comments for the official permit record will be accepted at the
public meetings.
Albuquerque, NM: November 1, 2001, 7 p.m. at the Albuquerque Technical
Vocational Institute Workforce Training Center, Conference Room 106,
5600 Eagle Rock Ave. NE, Albuquerque, NM 87113.
Oklahoma City, OK: November 7, 2001, 7 p.m; at the Metro Tech Business
Conference Center, Big Dipper Conference Room, 1900 Springlake Drive,
Oklahoma City, OK 73111.
Public Hearings
EPA has not scheduled any public hearings to receive public comment
concerning today's proposal. All persons will continue to have the
right to provide written comments at any time during the public comment
period. However, interested persons may request a public hearing
pursuant to 40 CFR 124.12 concerning the proposed permit. Requests for
a public hearing must be sent or delivered in writing to the same
address as provided above for public 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, EPA shall hold a public hearing if it finds, on the basis of
requests, a significant degree of public interest in the proposed
permit. If EPA 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 permit at the public hearing.
SUPPLEMENTARY INFORMATION: Regulated categories and entities include:
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Category Examples of regulated entities
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Industry............................... Operators of egg production
operations.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your (facility, company, business, organization, etc.) is regulated by
this action, you should carefully examine the applicability criteria in
part I, section A.1 of this permit. If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
Section 301(a) of the Clean Water Act (CWA or the Act), 33 U.S.C.
1311(a), makes it unlawful to discharge pollutants to waters of the
United States in the absence of authorizing permits. CWA section 402,
33 U.S.C. 1342, authorizes EPA to issue National Discharge Elimination
System (NPDES) permits allowing discharges on condition they will meet
certain requirements, including CWA sections 301, 304, and 401 (33
U.S.C. 1331, 1314 and 1341). Those statutory provisions require that
NPDES permits include effluent limitations requiring that authorized
discharges: (1) meet standards reflecting levels of technological
capability, (2) comply with EPA-approved state water quality standards
and (3) comply with other state requirements adopted under authority
retained by states under CWA 510, 33 U.S.C. 1370.
A. National Technology Guidelines
National guidelines establishing Best Available Technology (BAT)
and New Source Performance Standards have been promulgated for certain
sizes and types of facilities in the Feedlots Point Source Category and
are codified at 40 CFR part 412. For laying hen operations, these
guidelines apply to facilities having the capacity for 100,000 or more
laying hens when the facility has unlimited continuous flow watering
systems, and facilities having the capacity for 30,000 or more laying
hens when the facility has liquid manure handling systems. The
facilities potentially eligible to participate in this XL project have
neither unlimited continuous flow watering systems nor liquid manure
handling systems. These facilities have dry manure storage and
[[Page 50647]]
handling systems and do not use unlimited continuous flow watering
systems. There are, therefore, no guidelines establishing BAT and New
Source Performance Standards for the facilities potentially eligible
for participation in this XL project, so these facilities will not meet
the definition of new source in 40 CFR 122.2.
B. Project XL
Project XL, which stands for ``eXcellence and Leadership,'' is a
national initiative that tests innovative ways of achieving better and
more cost-effective public health and environmental protection. The
information and lessons learned from Project XL are being used to
assist EPA in redesigning its current regulatory and policy-setting
approaches. Project XL encourages testing of cleaner, cheaper, and
smarter ways to attain environmental results superior to those achieved
under current regulations and policies, in conjunction with greater
accountability to stakeholders. It is vital that each project tests new
ideas with the potential for wide application and broad environmental
benefits.
C. United Egg Producers XL Project
The United Egg Producers (UEP), a farmer cooperative that
represents egg producers nationwide, has entered into an XL project
agreement with EPA to provide a comprehensive program to bring egg-
producing facilities under NPDES permits faster, and help participating
egg-producing facilities achieve superior environmental performance by
implementing an environmental management system (EMS). This XL project
allows these facilities to obtain permit coverage under a less costly
and complex mechanism; i.e., a general permit and an EMS-based program
tailored to the needs of the egg-laying industry, as an incentive for
the industry's large producers to maintain environmentally superior
facilities and practices. Facilities that do not continue to comply
with their general permit or do not adequately implement their EMS
could be required to obtain individual NPDES permits. This project was
developed by a workgroup comprised of EPA, UEP members, several states,
non-governmental organizations, and U.S. Department of Agriculture. The
XL project final agreement was signed on October 25, 2000.
The XL project agreement requires participating facilities not only
to comply with the terms of an NPDES general permit, but also to
implement a multi-media EMS that controls a range of significant
environmental impacts including those not subject to regulation under
the Clean Water Act, such as odor and pest control. The project also
includes a third-party auditing component and on-farm management
practices most likely to result in superior environmental performance.
Each facility's EMS will be required to pass the independent third-
party audit before the facility can apply for coverage under the
general permit. Information on audit results will be provided to the
appropriate regulatory authorities and will be available to local
stakeholders. Ongoing audits will be conducted to ensure continuing
implementation of the EMS, and audit results will be available to the
public.
D. Requirements for Obtaining Coverage
Owners/operators of EPOs seeking to be covered by the permit
general permit must submit: (1) A notice of intent (NOI) to be covered
by this permit; (2) evidence that the EPO has developed and implemented
an EMS consistent with the guidelines set forth in the permit; (3) the
results of a successful audit conducted by an independent third party
for the purpose of applying for this permit; and (4) evidence that the
EPO: Has placed a notice in the local newspaper that indicates the EPO
has passed the audit and intends to submit the NOI, has sent the notice
directly to local stakeholders, and has established a point of contact
at the facility for public inquiries. Owners/operators of new EPOs must
submit an NOI, have a complete comprehensive nutrient management plan
(CNMP) and an EMS 180 days prior to commencement of operation.
E. Egg Producing Operations Not Eligible for Coverage
The following EPOs are not eligible for coverage under this NPDES
general permit:
1. EPOs that have failed an audit by an independent third party or
been notified by EPA to apply for an individual NPDES permit.
2. EPOs that have been notified by EPA that they are ineligible for
coverage because of a past history of non-compliance.
3. New and/or significantly expanding EPOs that apply manure and/or
wastewater to lands that are adjacent to bodies that are listed under
the Clean Water Act, section 303(d), as impaired due to inadequate
oxygen, excessive nutrients, suspended solids, turbidity and/or
pathogens and are notified by the EPA to apply for an individual NPDES
permit. A significantly expanding EPO means one which meets the
criteria of 40 CFR 122.29(b)(1)(i), (ii) and/or (iii); although, as
discussed above, such facilities do not meet the definition of new
source in 40 CFR 122.2.
4. EPOs which have liquid manure handling systems and/or unlimited
continuous flow watering systems.
5. Facilities which adversely affect properties listed or eligible
for listing in the National Register of Historical Places.
F. Effluent Limitations
The following effluent limitations apply to EPOs covered under this
general permit, and cover both the production and the land application
areas under the control of the EPO:
1. Production Areas: There shall be no discharge of process
wastewater pollutants to waters of the United States, except when a
catastrophic rainfall event causes an overflow of process wastewater
from a facility properly designed, constructed, maintained, and
operated to contain:
a. All process generated wastewater resulting from the operation of
the EPO; plus,
b. All runoff from a 25 year, 24-hour rainfall event for the
location of the EPO.
2. There shall be no discharge of process wastewater pollutants
from retention or control structures to groundwater that has a direct
hydrologic connection to waters of the United States.
3. Land Application Area: For discharges associated with land
application of process wastewater and/or manure under the control of
the EPO operator, including discharges to groundwater that has a direct
hydrologic connection to waters of the United States:
a. The EPO must ensure that such activities comply with the
requirements of Minimum Standard 9 (see section G.9, below).
b. There shall be no discharge of manure and/or process wastewater
from land application areas.
G. Minimum Standards to Protect Water Quality in NPDES Permits for
EPOs
Each of the following minimum standards is designed to achieve the
objective of preventing discharge of pollutants to waters of the U.S.
and from land application activities under the operational control of
the EPO. Minimum requirements or portions of minimum requirements that
must be implemented on the effective date of the permit are identified
with an asterisk (*).
[[Page 50648]]
1. Minimum Standard--Buffers or Equivalent Practices
Provide and maintain buffer strips or other equivalent practices
near the animal confinement areas, manure storage areas, and land
application areas that are sufficient to minimize the discharge of
pollutants to waters of the U.S. (e.g., soil erosion and manure and
wastewater). These practices may include but are not limited to:
residue management, conservation crop rotation, grassed waterways,
strip cropping, vegetative buffers, terracing, and diversion.
2. Minimum Standard--Divert Clean Water
* Design and implement management practices to divert clean water
and runoff waters from contact with the animal confinement areas;
animal manure; or manure and/or process wastewater storage systems.
Clean water and runoff waters includes rain falling on the roofs of
facilities, runoff from adjacent land, or other sources.
3. Minimum Standard--Prevent Direct Contact of Animals With Waters of
the U.S.
* Develop and implement appropriate controls to prevent direct
access of animals in confinement to waters of the U.S. to protect water
quality.
4. Minimum Standard--Animal Mortality
* Handle and dispose of dead animals in a manner that prevents
contamination of surface waters of the U.S. (including contamination of
groundwater with a direct hydrological connection to surface waters).
5. Minimum Standard--Chemical Disposal
* Prevent introduction of chemicals into manure and wastewater
storage structures for purposes of disposal. Examples include
pesticides, hazardous and toxic chemicals, and petroleum products/by-
products.
6. Minimum Standard--Proper Operation and Maintenance
* Implement an operation and maintenance program to minimize the
discharges of pollutants to surface water and groundwater that is
hydrologically connected to surface water that involves periodic visual
inspection and maintenance of all manure storage and handling equipment
and structures and all runoff management devices (e.g., cleaning
separators, barnyards, catch basins, screens, annual testing and
calibration of land application equipment to ensure proper application
rates and maintenance of filter strips).
7. Minimum Standard--Recordkeeping and Testing
* Maintain a log that documents the visual inspections, findings,
preventative maintenance, testing, and calibration that has been
performed.
* Document the date, rate, location, types of crops, and methods
used for application of manure and wastewater, as well as other
nutrients, to land under the control of the EPO operator.
Where manure and wastewater are not applied on land under the
operational control of the EPO operator, maintain a record of the
transfer of the manure off-site.
* Record the results of annual manure and wastewater sampling to
determine nutrient content.
* Record the results of representative soil sampling and analyses
conducted at least every three years to determine nutrient content.
8. Minimum Standard--Maintain Proper Storage Capacity
* Maintain sufficient freeboard in liquid manure/wastewater storage
structures to assure compliance with the permit conditions.
* Store dry manure in production buildings or in storage facilities
or in another as to prevent polluted runoff, (e.g, located on
relatively flat land, away from waterbodies, wetlands and wells, and/or
surrounded by a berm or buffer).
Provide adequate storage capacity so that land application occurs
only during periods when land or weather conditions are suitable for
manure and wastewater application (see Minimum Standard #9, below).
9. Minimum Standard--Rates and Timing of Land Application of Manure and
Wastewater
* Land apply manure and/or wastewater in accordance with proper
agricultural practices.
Land apply manure and/or wastewater in accordance with land
application rates developed on a site-specific basis as needed to
protect water quality. At a minimum, land application rates should (1)
prevent application of nutrients at rates that will exceed the capacity
of the soil and the planned crops to assimilate nutrients and minimize
water pollution; and (2) be quantified and based on the most limiting
nutrient in the soil (e.g., phosphorus or nitrogen), type of crop,
realistic crop yields, soil type, and all nutrient inputs in addition
to those from manure and wastewater.
Incorporate manure applied to the bare soil surface within 24 hours
after land application.
* Land application of manure and/or wastewater is prohibited on
land that is flooded, saturated with water, frozen or snow covered
(unless approved conservation measures of a certified CNMP are in place
to prevent off-site movement of contaminated water) at the time of land
application where the manure and/or wastewater may enter waters of the
U.S.
* Land application of manure and/or wastewater is prohibited on
land with slopes greater than 6 per cent unless approved conservation
measures of a certified CNMP are in place to prevent off-site movement
of contaminated water.
* Land application of manure and/or wastewater is prohibited during
the period of November 15 through April 15 on land with slopes greater
than 3 per cent unless approved conservation measures of a certified
CNMP are in place to prevent off-site movement of contaminated water.
*Land application of manure and/or wastewater is prohibited during
rainfall events and for 24 hours prior to a 60 per cent forecasted
rainfall event of \1/4\ inch or more.
H. Comprehensive Nutrient Management Plan (CNMP)
1. Elements of a CNMP
Each EPO covered by this permit shall develop and implement a site-
specific CNMP that includes the following elements as appropriate to
the needs and circumstances of the permitted facility: animal outputs;
manure handling and storage; land application of manure and wastewater;
site management; record keeping; and other manure and/or wastewater
utilization options. The CNMP must be developed and implemented to meet
all of the Minimum Standards to Protect Water Quality that are
applicable to the permitted facility. The CNMP must be developed and
implemented to meet the requirements of the CWA, current State and U.S.
Department of Agriculture-Natural Resources Conservation Service (NRCS)
technical standards and NRCS's CNMP Technical guidance.
2. Schedule for Developing, Submitting, and Implementing a CNMP
a. For existing EPO facilities--Following the submission of the
NOI, any existing EPO covered by this NPDES general permit shall
develop and implement a CNMP no later than 2 years after the effective
date of this general permit. The permittee must
[[Page 50649]]
notify the permitting authority in writing within thirty days following
the completed development of the site-specific CNMP.
b. For EPO facilities constructed after the effective date of this
permit--New EPOs must have developed a CNMP at least 180 days prior to
commencement of operation.
c. For existing EPOs having significant expansions, constructed
after the effective date of this permit, a CNMP (or revised CNMP)
addressing the expansion must be developed at least 180 days prior to
commencement of operation of the expansion.
I. Management Practices
1. Emergency Discharge Impact Abatement: Authorized discharges (see
section F, Effluent Limitations, above) must, where practicable, be
released to vegetated fields for filtering or captured in secondary
containment to minimize discharge to waters of U.S.
2. Irrigation Control: Irrigation systems shall be managed so as to
reduce or minimize: (1) Ponding or puddling of wastewater on land
application fields; and (2) contamination of ground and surface water.
3. Spills: Appropriate measures necessary to prevent spills and to
clean up spills of any toxic and other pollutants shall be taken. If
possible spills are anticipated, materials handling procedures and
storage must be specified in the CNMP. Procedures for cleaning up
spills shall be identified, and the necessary equipment to implement
clean up shall be made available to facility personnel. All spills
resulting in actual or potential to discharge to waters of th U.S. must
be reported to EPA and State/Indian Tribe authorities.
4. Measurement of Rainfall: A rain gauge meeting National Weather
Service standards or its equivalent shall be kept on site of all EPOs
which collect egg wash wastewater in uncovered lagoons or basins or
which practice land application of manure or egg wash wastewater. A log
of all measurable rainfall events shall be kept by the EPO operator/
owner.
5. Liner Requirement: Where a direct hydrologic connection through
ground water exists, the ponds, lagoons and basins of the retention
structure must have a liner which will prevent the potential
contamination of surface waters.
6. Employee Training: Where employees are responsible for work
activities which relate to permit compliance, those employees must be
regularly trained or informed of any information pertinent to the
proper operation and maintenance of the facility and waste disposal.
Training shall include topics as appropriate such as land application
of wastes, proper operation and maintenance of the facility, good
housekeeping and material management practices, necessary record-
keeping requirements, and spill response and clean up. The permittee is
responsible for determining the appropriate training frequency for
different levels of personnel and the CNMP shall identify periodic
dates for such training. This training program must also be included in
the EMS.
7. Chemical Handling: The owner/operator shall prevent the
discharge of pesticide-contaminated waters into retention structures.
All wastes from dipping vats, pest and parasite control units, and
other facilities utilized for the management of potentially hazardous
or toxic chemicals shall be handled and disposed of in a manner such as
to prevent pollutants from entering the retention structures or waters
of the United States.
8. Discharges of Chemicals to Containment Structures: All
discharges to containment structures shall be composed entirely of
wastewater from the proper operation and maintenance of an EPO and the
precipitation runoff from the EPO areas. The disposal of any materials
(other than materials and discharges associated with proper operation
and maintenance of the EPO) into the containment structures is
prohibited by this permit.
9. Siting and Structural Integrity: Site and construct new
facilities so as to comply with applicable State and/or local
requirements. In the absence of applicable State and/or local
requirements, new facilities must be constructed to meet NRCS, ASCS, or
equivalent engineering and construction standards. Existing facilities
must be checked and maintained to ensure their structural integrity,
and that they are appropriately sized for egg-producing operations.
10. Facility Closure: The following conditions shall apply to the
closure of egg washing storage structures and other litter and
wastewater facilities:
a. Closure of Egg Washing Wastewater Storage Structures
No egg washing wastewater storage structure shall be permanently
abandoned without proper closure.
Egg washing wastewater storage structures shall be maintained at
all times until closed in compliance with this section.
Egg washing wastewater storage structures must be properly closed
if the permittee ceases operation. In addition, any egg washing
wastewater storage structure that is not in use for a period of twelve
consecutive months must be properly closed unless the facility is
financially viable, intends to resume use of the structure at a later
date, and either: (1) maintains the structure as though it were
actively in use, to prevent compromise of structural integrity; or (2)
removes manure and wastewater to a depth of one foot or less and
maintains a depth of wastewater sufficient to preserve the integrity of
the synthetic or earthen liner. In either case, the permittee shall
notify the EPA of the action taken, and shall conduct routine
inspections, maintenance, and record-keeping as though the structure
were in use. Prior to restoration of use of the structure, the
permittee shall notify the EPA and provide the opportunity for
inspection.
All closure of lagoons and other earthen or synthetic lined basins
must be consistent with NRCS standards (currently, Field Technical
Guide No. 998, Interim Standard for Closure of Abandoned Waste
Treatment Lagoons and Waste Storage Ponds). Consistent with NRCS
standards, the permittee shall remove all waste materials to the
maximum extent practicable and dispose of them in accordance with the
permittee's CNMP, unless otherwise authorized by the EPA. If the
permittee plans to land apply lagoon sludge, the CNMP should have
special conditions for such application based on the most limiting
contaminant in the waste.
Unless otherwise authorized by the EPA, completion of closure for
egg washing wastewater storage structures shall occur as promptly as
practicable after the permittee ceases to operate or, if the permittee
has not ceased operations, 12 months from the date on which the use of
the structure ceased, unless the lagoons or basins are being maintained
for possible future use in accordance with the requirements above.
b. Closure Procedures for Manure and Other Wastewater Facilities
No manure or other wastewater control and retention structure shall
be abandoned. Closure of all such structures shall occur as promptly as
practicable after the permittee has ceased to operate, or, if the
permittee has not ceased to operate, within 12 months after the date on
which the use of the structure ceased. To close a manure or wastewater
control and retention structure, the permittee shall remove all manure
and wastewater and dispose of it in accordance with the permittee's
CNMP, unless otherwise authorized by the EPA.
[[Page 50650]]
Other Legal Requirements
A. State Certification
Under section 401(a)(1) of the Act, EPA may not issue an NPDES
permit until the State in which the discharge will originate grants or
waives certification to ensure compliance with appropriate requirements
of the Act and State law. Section 301(b)(1)(C) of the Act requires that
NPDES permits contain conditions that ensure compliance with applicable
state water quality standards or limitations. The proposed permit
contains limitations and requirements intended to ensure compliance
with state water quality standards and has been determined by EPA
Region 6 to be consistent with the applicable state's water quality
standards and the corresponding implementation plans. The Region has
solicited certification from the States of New Mexico, Oklahoma, and
the Pueblos of Acoma, Isleta, Nambe, Picuris, Pojoaque, Sandia, San
Juan, Santa Clara, and Tesuque.
B. Endangered Species Act
EPA Region 6 has determined that issuance of this general permit is
unlikely to adversely affect any threatened or endangered species or
its critical habitat. EPA made this determination for the following
reasons:
The permit specifically excludes operations having either
continuous overflow watering or liquid manure handling. EPOs covered by
this permit must comply with the permit requirements which include a
prohibition on discharges of process wastewater pollutants except
during catastrophic rainfall events from properly designed,
constructed, maintained and operated facilities. Discharges during
chronic rainfall events are prohibited. These EPOs will also be subject
to the numerous other requirements designed to assure proper operation
of the animal confinement areas, storage facilities and unloading/
handling areas of manure or egg wash water. Additionally, the permit
requirements will assure that manure and wastewater is properly applied
at an agronomic rate to minimize the contamination of rainwater falling
on the land application site. EPOs covered by this permit will be
subject to the additional requirement to implement a multi-media
environmental management system that controls a range of environmental
impacts, including those not subject to regulation under the Clean
Water Act, such as odor and pest control.
EPA is seeking written concurrence from the United States Fish and
Wildlife Service on this determination.
C. Historic Preservation Act
Facilities which adversely affect properties listed or eligible for
listing in the National Register of Historical Places are not
authorized to discharge under this permit.
D. Economic Impact (Executive Order 12866)
Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may have an annual effect
on the economy of $100 million or more or adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities; create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; materially alter the budgetary impact of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or raise novel legal or policy issues arising out
of legal mandates, the President's priorities, or the principles set
forth in the Executive Order. EPA has determined that this general
permit is not a ``significant regulatory action'' under the terms of
Executive Order 12866 and is therefore not subject to formal OMB review
prior to proposal.
E. Paperwork Reduction Act
The information collection required by this permit has been
approved by OMB under the provisions of the Paperwork Reduction Act, 44
U.S.C. 3501 et seq., in submission made for the NPDES permit program
and assigned OMB control numbers 2040-0086 (NPDES permit application)
and 2040-0004 (discharge monitoring reports).
F. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires that
EPA prepare a regulatory flexibility analysis for regulations that have
a significant impact on a substantial number of small entities. As
discussed below, the permit being proposed to be reissued is not a
``rule'' subject to the Regulatory Flexibility Act. EPA prepared a
regulatory flexibility analysis, however, on the promulgation of the
Coastal Subcategory guidelines on which many of the permit's effluent
limitations are based. That analysis shows that compliance with the
permit requirements will not result in a significant impact on
dischargers, including small businesses, covered by these permits. EPA
Region 6 therefore concludes that the permits proposed today will not
have a significant impact on a substantial number of small entities.
G. 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 the extent that such regulations incorporate requirements
specifically set forth in law)'' (emphasis added)). UMRA section 102
defines ``regulation'' by reference to section 658 of Title 2 of the
U.S. Code, which in turn defines ``regulation'' and ``rule'' by
reference to section 601(2) of the Regulatory Flexibility Act (RFA).
That section of the RFA defines ``rule'' as ``any rule for which the
agency publishes a notice of proposed rulemaking pursuant to section
553(b) of the Administrative Procedure Act (APA), or any other law * *
*''
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 Clean Water Act (CWA). While EPA publishes a
notice to solicit public comment on draft general permits, it does so
pursuant to the CWA section 402(a) requirement to provide ``an
opportunity for a hearing.'' Thus, NPDES general permits are not
``rules'' for RFA or UMRA purposes.
EPA thinks it is unlikely that this proposed permit issuance would
contain a Federal requirement that might result in expenditures of $100
million or more for State, local and tribal governments, in the
aggregate, or the private sector in any one year. The Agency also
believes that the proposed permit issuance would not significantly nor
uniquely affect small governments. For UMRA purposes, ``small
governments'' is defined by reference to the definition of ``small
governmental jurisdiction'' under the RFA. (See UMRA section 102(1),
referencing 2
[[Page 50651]]
U.S.C. 658, which references section 601(5) of the RFA.) ``Small
governmental jurisdiction'' means governments of cities, counties,
towns, etc., with a population of less than 50,000, unless the agency
establishes an alternative definition. The proposed permit issuance
also would not uniquely affect small governments because compliance
with the proposed permit conditions affects small governments in the
same manner as any other entities seeking coverage under the permit.
Dated: September 26, 2001.
Sam Becker,
Acting Director, Water Quality Protection Division, Region 6.
[FR Doc. 01-24904 Filed 10-3-01; 8:45 am]
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