Final Reissuance of National Pollutant Discharge Elimination System (NPDES) Storm Water Multi-Sector General Permit for Industrial Activities

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: October 30, 2000 (Volume 65, Number 210)]
[Notices]
[Page 64745-64794]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30oc00-122]
[[Page 64746]]

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ENVIRONMENTAL PROTECTION AGENCY
[FRL-6880-5]

Final Reissuance of National Pollutant Discharge Elimination System
(NPDES) Storm Water Multi-Sector General Permit for Industrial Activities

AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of Final NPDES general permit.

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SUMMARY: The Regional Administrators of EPA Regions 1, 2, 3, 4, 6, 8, 9
and 10 are today reissuing EPA's NPDES Storm Water Multi-Sector General
Permit (MSGP). This general permit was first issued on September 29,
1995 (60 FR 50804), and amended on February 9, 1996 (61 FR 5248),
February 20, 1996 (61 FR 6412), September 24, 1996 (61 FR 50020),
August 7, 1998 (63 FR 42534) and September 30, 1998 (63 FR 52430). The
reissuance of the MSGP was proposed by EPA on March 30, 2000 (65 FR
17010). Today's final MSGP will authorize the discharge of storm water
from industrial facilities consistent with the terms of the permit.

DATES: This MSGP shall be effective on October 30, 2000. This effective
date is necessary to provide dischargers with the immediate opportunity
to comply with Clean Water Act requirements in light of the expiration
of the existing MSGP on October 1, 2000. Deadlines for submittal of
notices of intent are provided in Section VI.A.2 of this fact sheet and
Part 2.1 of the MSGP. Today's MSGP also provides additional dates for
compliance with the terms of the permit.

ADDRESSES: The index to the administrative record for the final MSGP is
available at the appropriate Regional Office or from the EPA Water
Docket Office in Washington, DC. The administrative record, including
documents immediately referenced in this reissuance notice and
applicable documents used to support the original issuance of the MSGP
in 1995, are stored at the EPA Water Docket Office at the following
address: Water Docket, MC-4101, U.S. EPA, 401 M Street SW, room EB57,
Washington, DC 20460. The records are available for inspection from 9
a.m. to 4 p.m., Monday through Friday, excluding legal holidays. For
appointments to examine any portion of the administrative record,
please call the Water Docket Office at (202) 260-3027. A reasonable fee
may be charged for copying. Specific record information can also be
made available at the appropriate Regional Office upon request.

FOR FURTHER INFORMATION CONTACT: For further information on the final
MSGP, contact the appropriate EPA Regional Office. The name, address
and phone number of the EPA Regional Storm Water Coordinators are
provided in Section VI.F of this fact sheet. Information is also
available through the Internet on EPA's Office of Wastewater Management
website at http://www.epa.gov/owm/sw.

SUPPLEMENTARY INFORMATION: The following fact sheet provides background
information and explanation for today's notice of final MSGP
reissuance, including a summary Response to Comments regarding the
comments which were received on the proposed MSGP. The actual language
of the final MSGP appears after this fact sheet.

Fact Sheet

Table of Contents

I. Background
A. Pollutants in Storm Water Discharges Associated with Industrial
Activities in General
B. Summary of Options for Controlling Pollutants
C. The Federal/Municipal Partnership: The Role of Municipal
Operators of Large and Medium Municipal Separate Storm Sewer Systems
II. Organization of Final MSGP and Summary of Changes From the 1995
MSGP and the March 30, 2000 Proposed MSGP
III. Geographic Coverage of Final MSGP
IV. Categories of Facilities Covered by Final MSGP
V. Limitations on Coverage
A. Storm Water Discharges Subject to Effluent Guidelines
Limitations, Including New Source Performance Standards
B Historic Preservation
C. Endangered Species
D. New Storm Water Discharges to Water Quality-Impaired or Water
Quality-Limited Receiving Waters
E. Storm Water Discharges Subject to Anti-Degradation Provisions
of Water Quality Standards
F. Storm Water Discharges Previously Covered by an Individual Permit
G. Requiring Coverage Under an Individual Permit or an Alternate
General Permit
VI. Summary of Common Permit Conditions
A. Notification Requirements
1. Content of NOI
2. Deadlines
3. Municipal Separate Storm Sewer System Operator Notification
4. Notice of Termination
5. Conditional Exclusion for No Exposure
B. Special Conditions
1. Prohibition of Non-storm Water Discharges
2. Releases of Reportable Quantities of Hazardous Substances and Oil
3. Co-located Industrial Facilities
4. Numeric Effluent Limitations
5. Compliance with Water Quality Standards
C. Common Storm Water Pollution Prevention Plan (SWPPP) Requirements
1. Pollution Prevention Team
2. Description of the Facility and Potential Pollution Sources
3. Selection and Implementation of Storm Water Controls
4. Deadlines
D. Special Requirements
1. Special Requirements for Storm Water Discharges Associated
With Industrial Activity From Facilities Subject to EPCRA Section
313 Requirements
2. Special Requirements for Storm Water Discharges Associated
With Industrial Activity From Salt Storage Facilities
3. Consistency With Other Plans
E. Monitoring and Reporting Requirements
1. Analytical Monitoring Requirements
2. Compliance Monitoring
3. Alternate Certification
4. Reporting and Retention Requirements
5. Sample Type
6. Representative Discharge
7. Sampling Waiver
8. Quarterly Visual Examination of Storm Water Quality
F. Regional Offices
1. Notice of Intent Address
2. EPA Regional Office Addresses and Contacts
VII. Cost Estimates For Common Permit Requirements
VIII. Special Requirements for Discharges Associated With Specific
Industrial Activities
IX. Summary of Responses to Comments on the Proposed MSGP
X. Economic Impact (Executive Order 12866)
XI. Unfunded Mandates Reform Act
XII. Paperwork Reduction Act
XIII. Regulatory Flexibility Act

I. Background

The Regional Administrators of EPA Regions 1, 2, 3, 4, 6, 8, 9 and
10 are today reissuing EPA's NPDES Storm Water Multi-Sector General
Permit (MSGP). The MSGP currently authorizes storm water discharges
associated with industrial activity for most areas of the United States
where the NPDES permit program has not been delegated. The MSGP was
originally issued on September 29, 1995 (60 FR 50804), and amended on
February 9, 1996 (61 FR 5248), February 20, 1996 (61 FR 6412),
September 24, 1996 (61 FR 50020), August 7, 1998 (63 FR 42534) and
September 30, 1998 (63 FR 52430). The proposed reissuance of the MSGP
appeared in the Federal Register on March 30, 2000 (65 FR 17010).
The 1995 MSGP was the culmination of the group permit application
process described at 40 CFR 122.26(c)(2). A group permit application
was one of three options for obtaining an NPDES industrial storm water
permit which

[[Page 64747]]

were provided by the 1990 storm water permit application regulations
(55 FR 48063). The 1990 regulations also provided that industrial
facilities could apply for coverage under an existing general NPDES
permit or apply for an individual permit. In 1992, EPA issued a
baseline general permit (57 FR 41175 and 57 FR 44412) to cover
industrial facilities which did not select the group application option
or submit an application for an individual permit.
In response to the group application option, EPA received
applications from approximately 1,200 groups representing nearly all of
the categories of industrial facilities listed in the storm water
regulations at 40 CFR 122.26(b)(14). To facilitate permit issuance for
the group applications, EPA consolidated the groups into 29 industrial
sectors, with subsectors also included in certain sectors as appropriate.
In developing the requirements for the 1995 MSGP, EPA utilized and
built upon the storm water pollution control requirements of the 1992
baseline general permit. The baseline permit had required a storm water
pollution prevention plan (SWPPP) with generic best management practice
(BMP) requirements which applied to all facilities covered by the
permit. In addition, certain categories of facilities were required to
monitor storm water discharges based on EPA's best professional
judgment concerning the risks posed by the facilities.
The group permit applications included information concerning the
specific types of operations which are present at the different types
of industrial facilities, potential sources of pollutants at the
facilities, industry-specific BMPs which are available, and monitoring
data from the different types of facilities. Using this information,
EPA developed SWPPP requirements for the MSGP which consisted of the
generic requirements of the baseline permit plus industry-specific
requirements developed from the group application information. Also,
the monitoring requirements of the 1995 MSGP were developed using the
monitoring data submitted with the group applications rather than EPA's
best professional judgment.
On September 30, 1998 (63 FR 52430), EPA terminated the baseline
general permit and required facilities which were previously covered by
the baseline permit to seek coverage under the MSGP (or submit an
individual permit application). EPA believed that the MSGP, with its
industry-specific requirements, would provide improved water quality
benefits as compared to the baseline permit.
For today's reissuance of the MSGP, EPA has re-evaluated the
industry-specific requirements of the MSGP. In a few instances,
additional requirements have been included based on new information
which has been obtained since the original MSGP issuance in 1995. These
changes are discussed in more detail in Section VIII of this fact
sheet, and in the Response to Comments. EPA also re-evaluated the
monitoring requirements of the existing MSGP. However, after review of
the comments received from the public, and the monitoring data received
during the term of the 1995 MSGP, EPA has retained the same monitoring
requirements for the reissued MSGP as were found in the 1995 MSGP.

A. Pollutants in Storm Water Discharges Associated With Industrial
Activities in General

The volume and quality of storm water discharges associated with
industrial activity will depend on a number of factors, including the
industrial activities occurring at the facility, the nature of the
precipitation, and the degree of surface imperviousness. A discussion
of these factors was provided in the fact sheet for the original
proposed MSGP (58 FR 61146 Nov. 19, 1993), and is not being repeated here.

B. Summary of Options for Controlling Pollutants

Pollutants in storm water discharges from industrial plants may be
reduced using the following methods: Eliminating pollution sources,
implementing BMPs to prevent pollution, using traditional storm water
management practices, and providing end-of-pipe treatment. A general
discussion of each of these was included in the original proposed MSGP
(58 FR 61146, Nov. 19, 1993), and is not being repeated here.

C. The Federal/Municipal Partnership: The Role of Municipal Operators
of Large and Medium Municipal Separate Storm Sewer Systems

A key issue in developing a workable regulatory program for
controlling pollutants in storm water discharges associated with
industrial activity is the proper use and coordination of limited
regulatory resources. This is especially important when addressing the
appropriate role of municipal operators of large and medium municipal
separate storm sewer systems in the control of pollutants in storm
water associated with industrial activity which discharge through
municipal separate storm sewer systems. The original proposed MSGP
discussed several key policy factors (see 58 FR 61146).

II. Organization of Final MSGP and Summary of Changes From the 1995
MSGP and the March 30, 2000 Proposed MSGP

The organization of today's final MSGP has been revised from the
1995 MSGP to reduce the overall size of the permit. In Part XI of the
1995 MSGP, many requirements such as SWPPP and monitoring requirements
which were common to each sector were repeated in each sector, greatly
adding to length of the permit. For today's reissuance, such
requirements are found only once in expanded sections of the permit
(Parts 4 and 5) which include requirements common to each sector.
Requirements which are genuinely unique to a given sector or subsector
are found in Part 6 in the permit. Similarly, Section VIII of the fact
sheet for the 1995 MSGP repeated certain explanatory information in the
discussions of sector-specific requirements, and also included
considerable descriptive information about the various sectors. To
reduce the length of today's notice, most of this information is not
being repeated. Section VIII of today's fact sheet focuses on the
changes (if any) in the various sectors. The reorganization and
reduction of duplication have reduced the size of the permit by
approximately 75%.
Also note that the section/paragraph identification scheme of
today's final MSGP has been modified from the 1995 MSGP. The original
scheme utilized a sometimes lengthy combination of numbers, letters and
Roman numerals (in both upper and lower cases) which many permittees
found confusing. Today's reissuance identifies sections/paragraphs, and
hence permit conditions, using numbers only, except in Part 6 (which
also incorporates the sector letters from the 1995 MSGP for
consistency). Under the original permit, only the last digit or letter
of the section/paragraph identifier appeared with its accompanying
section title/paragraph, making it difficult to determine where you
were in the permit. In today's reissuance, the entire string of
identifying numbers is listed at each section/paragraph to facilitate
recognizing where you are and in citing and navigating through the
permit. For example, paragraph number 1.2.3.5 tells you immediately
that you are in Part 1, section 2, paragraph 3, subparagraph 5; whereas
under the 1995 MSGP you would only see an ``e'', thereby forcing you to
hunt back through the permit to

[[Page 64748]]

determine that you were in Part I.B.3.e. The exception to the numbering
rule is in Part 6, where the Sector letters from the 1995 MSGP have
been retained to correspond to the sectors of industry covered by the
permit and make it easy to tell that you are in a section of the permit
which has conditions which only apply to a specific industrial sector.
For example, paragraph 6.F.3.4 immediately tells you that you are in
Part 6 and looking at conditions that only apply to sector ``F''
facilities. In some cases, requirements which previously appeared in a
single paragraph are now found listed out as separate individual items.
The final MSGP is also written in EPA's ``readable regulations'' style
using terms like ``you'' and ``your'' in referring to permittees, etc.
Following below is a list of the major changes included in the
proposed MSGP of March 30, 2000 (as compared to the 1995 MSGP) and
retained in today's final MSGP. These changes are discussed in more
detail later in this fact sheet.
1. Requirements for co-located activities clarified (Part 1.2.1.1).
2. Incidental cooling tower mist discharges included as an
authorized non-storm water discharge, subject to certain requirements
(Parts 1.2.2.2.13 and 4.4.2.3).
3. Eligibility provided for coverage of inactive mining activities
occurring on Federal Lands where an operator has not been identified
(Part 1.2.3).
4. Clarified language for situations where a discharge previously
covered by an individual permit can be covered under today's MSGP (Part
1.2.3.3).
5. Clarified/added language for compliance with water quality
standards and requirements for follow-up actions if standards are
exceeded (Parts 1.2.3.5 and 3.3).
6. ESA and NHPA eligibility requirements modified (Parts 1.2.3.6
and 1.2.3.7).
7. Eligibility requirements for discharges to water quality
impaired/limited waterbodies added/clarified (Part 1.2.3.8).
8. Clarified that discharges which do not comply with anti-
degradation requirements are not authorized by the permit (Part 1.2.3.9).
9. Deadline of 30 days for submission of an NOT added (Part 1.4.2).
10. Opportunity for termination of permit coverage based on the
``no exposure exemption'' from the Phase II storm water regulations (64
FR 68722, 12/8/99) added (Parts 1.5 and 11.4).
11. Notice of Intent requirements and modified form (Part 2.2 and
Addendum D).
12. Permit will accommodate electronic filing of NOIs, NOTs, or
DMRs, should these options become available during the term of the
permit (Parts 2.3 and 7.1)
13. Prohibition on discharges of solid materials and floating
debris and requirement to minimize off-site tracking of materials and
generation of dust added (Part 4.2.7.2.3).
14. Requirement to include a copy of the permit with the storm
water pollution prevention plan (SWPPP) was added (Part 4.7).
15. Special conditions for EPCRA 313 facilities were modified (Part
4.12).
16. Monitoring requirements reorganized and additional
clarification/revisions on monitoring periods, waivers, default minimum
monitoring for limitations added by State 401 certification, and
reporting requirements added (Part 5).
17. Manufacturing of fertilizer from leather scraps (SIC 2873)
moved from Sector Z--Leather Tanning and Finishing to Sector C--
Chemical and Allied Products (Table 1-1 and Part 6.C).
18. New effluent limitations guidelines for landfills in Sectors K
and L included; the final guidelines were published in the Federal
Register on January 19, 2000 (65 FR 3007) (Parts 6.K.5 and 6.L.6).
19. Sector AD (Non-Classified Facilities) language clarified to say
that facilities cannot choose coverage under Sector AD, but can only be
so assigned by permitting authority (Part 6.AD).
20. Additional BMP requirements in Sectors S, T, and Y added (Parts
6.S, 6.T, and 6.Y).
21. NOI to continue coverage under the permit when it expires
(without a replacement permit in place) is not required and the
reapplication process has been clarified (Part 9.2).
22. Process for EPA to remove facilities from permit coverage
clarified (Part 9.12).
Following below is another list which summarizes the provisions of
today's final MSGP which differ from the proposed MSGP of March 30, 2000.
1. Reference to ``drinking fountain water'' removed from Part
1.2.2.2.3.
2. Part 1.2.3.3.2.1 of the proposed MSGP was deleted. This
requirement had not allowed MSGP coverage for facilities previously
covered by another permit, unless the other permit only covered storm
water and MSGP authorized non-storm water discharges.
3. Part 2.2.3.6 revised to indicate that the NOI must include the
name of the MS4 receiving the discharges only if it is different from
the permittee.
4. Part 4.9.3 revised to clarify the time frame for implementation
of revised SWPPP.
5. Part 4.11 revised to require permittees to provide a copy of
their SWPPP to the public when requested in writing to do so.
6. Sector E coverage was modified for consistency with the
September 30, 1998 MSGP modification.
7. In Sector G, language was added stating that non-storm water
discharges must be tested or evaluated; this change ensures consistency
with the 1995 MSGP. Also in Sector G, the definition of ``reclamation''
was revised.
8. The title for Sector I was changed to include ``Refining.''
9. Sector T revised for consistency with 40 CFR 122.26(b)(14)(ix)
concerning size of POTWs covered.
10. Section V.C. deleted the requirement to consider species
proposed for listing as endangered or threatened.

III. Geographic Coverage of Final MSGP

The geographic coverage of today's final MSGP includes the
following areas:
EPA Region 1--for the States of Maine, Massachusetts and New
Hampshire; for Indian Country lands located in Massachusetts,
Connecticut, Rhode Island and Maine; and for Federal facilities in the
State of Vermont.
EPA Region 2--for the Commonwealth of Puerto Rico.
EPA Region 3--for the District of Columbia and Federal facilities
in the State of Delaware.
EPA Region 4--for Indian Country lands located in the State of Florida.
EPA Region 6--for the State of New Mexico; for Indian Country lands
located in the States of Louisiana, New Mexico, Texas and Oklahoma
(except Navajo lands and Ute Mountain Reservation lands); for oil and
gas facilities under SIC codes 1311, 1381, 1382, and 1389 in the State
of Oklahoma not on Indian Country lands; and oil and gas facilities
under SIC codes 1311, 1321, 1381, 1382, and 1389 in the State of Texas
not on Indian Country lands.
EPA Region 8--for Federal facilities in the State of Colorado; for
Indian Country lands in Colorado, North Dakota, South Dakota, Wyoming
and Utah (except Goshute and Navajo Reservation lands); for Ute
Mountain Reservation lands in Colorado and New Mexico; and for Pine
Ridge Reservation lands in South Dakota and Nebraska.
EPA Region 9--for the State of Arizona; for the Territories of
Johnston Atoll, American Samoa, Guam, the

[[Page 64749]]

Commonwealth of Northern Mariana Islands, Midway and Wake Islands; for
Indian Country lands located in Arizona, California, and Nevada; and
for the Goshute Reservation in Utah and Nevada, the Navajo Reservation
in Utah, New Mexico, and Arizona, the Duck Valley Reservation in Nevada
and Idaho, and the Fort McDermitt Reservation in Oregon and Nevada.
EPA Region 10--for the State of Idaho; for Indian Country lands
located in Alaska, Oregon (except Fort McDermitt Reservation lands),
Idaho (except Duck Valley Reservation lands) and Washington; and for
Federal facilities in Washington.
For several reasons, the geographic area of coverage described
above differs from the area of coverage of the 1995 MSGP. Indian
country in Vermont and New Hampshire has been removed since there are
no Federally recognized tribes in these States. Also, state NPDES
permit programs have since been authorized in the States of South
Dakota, Louisiana, Oklahoma (except for certain oil and gas facilities
in Oklahoma) and Texas (again except for oil and gas facilities). In
Oklahoma, EPA maintains NPDES permitting authority over oil and gas
exploration and production related industries, and pipeline operations
regulated by the Oklahoma Corporation Commission (See 61 FR 65049).
Oklahoma received NPDES program authorization only for those discharges
covered by the authority of the Oklahoma Department of Environmental
Quality (ODEQ). In Texas, EPA maintains NPDES permitting authority over
oil and gas discharges regulated by the Texas Railroad Commission (See
63 FR 51164). Texas received NPDES program authorization only for those
discharges covered by the authority of the Texas Natural Resource
Conservation Commission (TNRCC).
Specific additional conditions required in Region 6 as a result of
a State or Tribal CWA Section 401 certification have been added for New
Mexico, Oklahoma, and the Pueblos of Isleta, Pojoaque, San Juan, and
Sandia. Numeric limitations for discharges in Texas contained in the
previous permit pursuant to 31 TAC 319.22 and 319.23 have been
continued in accordance with 40 CFR 122.44(d) and (l).
Federal facilities in Colorado, and Indian country located in
Colorado (including the portion of the Ute Mountain Reservation located
in New Mexico), North Dakota, South Dakota (including the portion of
the Pine Ridge Reservation located in Nebraska), Utah (except for the
Goshute and Navajo Reservation lands) and Wyoming were not included in
the 1995 MSGP, but are included in today's MSGP. Indian country lands
in Montana are not included at this time due to a recent court order.
Prior to today, industrial facilities in these areas were largely
covered under an extension of EPA's 1992 baseline general permit for
industries (57 FR 41175).
Also, subsequent to the issuance of the MSGP in 1995, coverage was
extended to the Island of Guam on September 24, 1996 (61 FR 50020) and
the Commonwealth of the Northern Mariana Islands on September 30, 1998
(63 FR 52430). Certification was not received from Arizona in time for
that state to be included in this permit.
The 1995 MSGP was issued in the State of Alaska, except Indian
Country, on February 9, 1996 (61 FR 5247). Industrial facilities in
Alaska outside of Indian Country will continue to be covered under the
1995 MSGP through February 9, 2001. EPA will reissue the permit for
Alaska at a later date, and will include any state-specific
modifications or additions or additions applicable to parts 1 through
12 of this permit as part of the State's Clean Water Act Section 401 or
Coastal Zone Management Act certification processes.
Lastly, today's MSGP reissuance differs from the March 30, 2000
MSGP proposal in that the State of Florida (except for Indian country)
is not included. This is a result of the recent NPDES program
delegation to the State of Florida.
There are some areas where the NPDES permit program has not been
delegated (such as Indian country in states not listed above) where
neither the MSGP nor an alternate general permit is available for
authorization of storm water discharges associated with industrial
activity. However, only a very small number of permittees exist in such
areas and individual permits are issued as needed.

IV. Categories of Facilities Covered by the Final MSGP

Today's final MSGP authorizes storm water discharges associated
with industrial activity from the categories of facilities shown in
Table 1 below:

Table 1.--Sector/Subsectors Covered by the Final MSGP
----------------------------------------------------------------------------------------------------------------
Subsector SIC code Activity represented
----------------------------------------------------------------------------------------------------------------
Sector A. Timber Products
----------------------------------------------------------------------------------------------------------------
1*............................ 2421............................................. General Sawmills and Planning
Mills.
2............................. 2491............................................. Wood Preserving.
3*............................ 2411............................................. Log Storage and Handling.
4*............................ 2426............................................. Hardwood Dimension and
Flooring Mills.
2429............................................. Special Product Sawmills, Not
Elsewhere Classified.
2431-2439 (except 2434).......................... Millwork, Veneer, Plywood,
and Structural Wood.
2448, 2449....................................... Wood Containers.
2451, 2452....................................... Wood Buildings and Mobile
Homes.
2493............................................. Reconstituted Wood Products.
2499............................................. Wood Products, Not Elsewhere
Classified.
----------------------------------------------------------------------------------------------------------------

Sector B. Paper and Allied Products Manufacturing
----------------------------------------------------------------------------------------------------------------
1............................. 2611............................................. Pulp Mills.
2............................. 2621............................................. Paper Mills.
3*............................ 2631............................................. Paperboard Mills.
4............................. 2652-2657........................................ Paperboard Containers and
Boxes.
5............................. 2671-2679........................................ Converted Paper and
Paperboard Products, Except
Containers and Boxes.
----------------------------------------------------------------------------------------------------------------

Sector C. Chemical and Allied Products Manufacturing
----------------------------------------------------------------------------------------------------------------
1*............................ 2812-2819........................................ Industrial Inorganic
Chemicals.

[[Page 64750]]

2*............................ 2821-2824........................................ Plastics Materials and
Synthetic Resins, Synthetic
Rubber, Cellulosic and Other
Manmade Fibers Except Glass.
3............................. 2833-2836........................................ Medicinal chemicals and
botanical products;
pharmaceutical
preparations,; invitro and
invivo diagnostic
substances; biological
products, except diagnostic
substances.
4*............................ 2841-2844........................................ Soaps, Detergents, and
Cleaning Preparations;
Perfumes, Cosmetics, and
Other Toilet Preparations.
5............................. 2851............................................. Paints, Varnishes, Lacquers,
Enamels, and Allied
Products.
6............................. 2861-2869........................................ Industrial Organic Chemicals.
7*............................ 2873-2879........................................ Agricultural Chemicals,
Including Facilities that
Make Fertilizer Solely from
Leather Scraps and Leather
Dust.
8............................. 2891-2899........................................ Miscellaneous Chemical
Products.
9............................. 3952 (limited to list)........................... Inks and Paints, Including
China Painting Enamels,
India Ink, Drawing Ink,
Platinum Paints for Burnt
Wood or Leather Work, Paints
for China Painting, Artist's
Paints and Artist's
Watercolors.
----------------------------------------------------------------------------------------------------------------

Sector D. Asphalt Paving and Roofing Materials Manufacturers and Lubricant Manufacturers.
----------------------------------------------------------------------------------------------------------------
1*............................ 2951, 2952....................................... Asphalt Paving and Roofing
Materials.
2............................. 2992, 2999....................................... Miscellaneous Products of
Petroleum and Coal.
----------------------------------------------------------------------------------------------------------------

Sector E. Glass, Clay, Cement, Concrete, and Gypsum Product Manufacturing
----------------------------------------------------------------------------------------------------------------
1............................. 3211............................................. Flat Glass.
3221, 3229....................................... Glass and Glassware, Pressed
or Blown.
3231............................................. Glass Products Made of
Purchased Glass.
3281............................................. Cut Stone and Stone Products.
3291-3292........................................ Abrasive and Asbestos
Products.
3296............................................. Mineral Wool.
3299............................................. Nonmetallic Mineral Products,
Not Elsewhere Classified.
2............................. 3241............................................. Hydraulic Cement.
3*............................ 3251-3259........................................ Structural Clay Products.
3261-3269........................................ Pottery and Related Products.
3297............................................. Non-Clay Refractories.
4*............................ 3271-3275........................................ Concrete, Gypsum and Plaster
Products.
3295............................................. Minerals and Earth's, Ground,
or Otherwise Treated.
----------------------------------------------------------------------------------------------------------------

Sector F. Primary Metals
----------------------------------------------------------------------------------------------------------------
1*............................ 3312-3317........................................ Steel Works, Blast Furnaces,
and Rolling and Finishing
Mills.
2*............................ 3321-3325........................................ Iron and Steel Foundries.
3............................. 3331-3339........................................ Primary Smelting and Refining
of Nonferrous Metals.
4............................. 3341............................................. Secondary Smelting and
Refining of Nonferrous
Metals.
5*............................ 3351-3357........................................ Rolling, Drawing, and
Extruding of Nonferrous
Metals.
6*............................ 3363-3369........................................ Nonferrous Foundries
(Castings).
7............................. 3398, 3399....................................... Miscellaneous Primary Metal
Products.
----------------------------------------------------------------------------------------------------------------

Sector G. Metal Mining (Ore Mining and Dressing)
----------------------------------------------------------------------------------------------------------------
1............................. 1011............................................. Iron Ores.
2*............................ 1021............................................. Copper Ores.
3............................. 1031............................................. Lead and Zinc Ores.
4............................. 1041, 1044....................................... Gold and Silver Ores.
5............................. 1061............................................. Ferroalloy Ores, Except
Vanadium.
6............................. 1081............................................. Metal Mining Services.
7............................. 1094, 1099....................................... Miscellaneous Metal Ores.
----------------------------------------------------------------------------------------------------------------

Sector H. Coal Mines and Coal Mining-Related Facilities
----------------------------------------------------------------------------------------------------------------
NA*........................... 1221-1241........................................ Coal Mines and Coal Mining-
Related Facilities Sector.
----------------------------------------------------------------------------------------------------------------

Sector I. Oil and Gas Extraction and Refining
----------------------------------------------------------------------------------------------------------------
1*............................ 1311............................................. Crude Petroleum and Natural
Gas.
2............................. 1321............................................. Natural Gas Liquids.
3*............................ 1381-1389........................................ Oil and Gas Field Services.
4............................. 2911............................................. Petroleum refining.
----------------------------------------------------------------------------------------------------------------

Sector J. Mineral Mining and Dressing
----------------------------------------------------------------------------------------------------------------
1*............................ 1411............................................. Dimension Stone.
1422-1429........................................ Crushed and Broken Stone,
Including Rip Rap.

[[Page 64751]]

1481............................................. Nonmetallic Minerals, Except
Fuels.
2*............................ 1442, 1446....................................... Sand and Gravel.
3............................. 1455, 1459....................................... Clay, Ceramic, and Refractory
Materials.
4............................. 1474-1479........................................ Chemical and Fertilizer
Mineral Mining.
1499............................................. Miscellaneous Nonmetallic
Minerals, Except Fuels.
----------------------------------------------------------------------------------------------------------------

Sector K. Hazardous Waste Treatment Storage or Disposal Facilities
----------------------------------------------------------------------------------------------------------------
NA*........................... HZ............................................... Hazardous Waste Treatment,
Storage or Disposal.
----------------------------------------------------------------------------------------------------------------

Sector L. Landfills and Land Application Sites
----------------------------------------------------------------------------------------------------------------
NA*........................... LF............................................... Landfills, Land Application
Sites and Open Dumps.
----------------------------------------------------------------------------------------------------------------

Sector M. Automobile Salvage Yards
----------------------------------------------------------------------------------------------------------------
NA*........................... 5015............................................. Automobile Salvage Yards.
----------------------------------------------------------------------------------------------------------------

Sector N. Scrap Recycling Facilities
----------------------------------------------------------------------------------------------------------------
NA*........................... 5093............................................. Scrap Recycling Facilities.
----------------------------------------------------------------------------------------------------------------

Sector O. Steam Electric Generating Facilities
----------------------------------------------------------------------------------------------------------------
NA*........................... SE............................................... Steam Electric Generating
Facilities.
----------------------------------------------------------------------------------------------------------------

Sector P. Land Transportation
----------------------------------------------------------------------------------------------------------------
1............................. 4011, 4013....................................... Railroad Transportation.
2............................. 4111-4173........................................ Local and Highway Passenger
Transportation.
3............................. 4212-4231........................................ Motor Freight Transportation
and Warehousing.
4............................. 4311............................................. United States Postal Service.
5............................. 5171............................................. Petroleum Bulk Stations and
Terminals.
----------------------------------------------------------------------------------------------------------------

Sector Q. Water Transportation
----------------------------------------------------------------------------------------------------------------
NA*........................... 4412-4499........................................ Water Transportation.
----------------------------------------------------------------------------------------------------------------

Sector R. Ship and Boat Building or Repairing Yards
----------------------------------------------------------------------------------------------------------------
NA............................ 3731, 3732....................................... Ship and Boat Building or
Repairing Yards.
----------------------------------------------------------------------------------------------------------------

Sector S. Air Transportation Facilities
----------------------------------------------------------------------------------------------------------------
NA*........................... 4512-4581........................................ Air Transportation
Facilities.
----------------------------------------------------------------------------------------------------------------

Sector T. Treatment Works
----------------------------------------------------------------------------------------------------------------
NA*........................... TW............................................... Treatment Works.
----------------------------------------------------------------------------------------------------------------

Sector U. Food and Kindred Products
----------------------------------------------------------------------------------------------------------------
1............................. 2011-2015........................................ Meat Products.
2............................. 2021-2026........................................ Dairy Products.
3............................. 2032............................................. Canned, Frozen and Preserved
Fruits, Vegetables and Food
Specialties.
4*............................ 2041-2048........................................ Grain Mill Products.
5............................. 2051-2053........................................ Bakery Products.
6............................. 2061-2068........................................ Sugar and Confectionery
Products.
7*............................ 2074-2079........................................ Fats and Oils.
8............................. 2082-2087........................................ Beverages.
9............................. 2091-2099........................................ Miscellaneous Food
Preparations and Kindred
Products.
2111-2141........................................ Tobacco Products.
----------------------------------------------------------------------------------------------------------------

Sector V. Textile Mills, Apparel, and Other Fabric Product Manufacturing
----------------------------------------------------------------------------------------------------------------
1............................. 2211-2299........................................ Textile Mill Products.
2............................. 2311-2399........................................ Apparel and Other Finished
Products Made From Fabrics
and Similar Materials.
3131-3199 (except 3111).......................... Leather Products.
----------------------------------------------------------------------------------------------------------------

[[Page 64752]]

Sector W. Furniture and Fixtures
----------------------------------------------------------------------------------------------------------------
NA............................ 2511-2599........................................ Furniture and Fixtures.
2434............................................. Wood Kitchen Cabinets.
----------------------------------------------------------------------------------------------------------------

Sector X. Printing and Publishing
----------------------------------------------------------------------------------------------------------------
NA............................ 2711-2796........................................ Printing, Publishing and
Allied Industries.
----------------------------------------------------------------------------------------------------------------

Sector Y. Rubber, Miscellaneous Plastic Products, and Miscellaneous Manufacturing Industries
----------------------------------------------------------------------------------------------------------------
1*............................ 3011............................................. Tires and Inner Tubes.
3021............................................. Rubber and Plastics Footwear.
3052, 3053....................................... Gaskets, Packing, and Sealing
Devices and Rubber and
Plastics Hose and Belting.
3061, 3069....................................... Fabricated Rubber Products,
Not Elsewhere Classified.
2............................. 3081-3089........................................ Miscellaneous Plastics
Products.
3931............................................. Musical Instruments.
3942-3949........................................ Dolls, Toys, Games and
Sporting and Athletic Goods.
3951-3955 (except 3952 as specified in Sector C). Pens, Pencils, and Other
Artists' Materials.
3961, 3965....................................... Costume Jewelry, Costume
Novelties, Buttons, and
Miscellaneous Notions,
Except Precious Metal.
3991-3999........................................ Miscellaneous Manufacturing
Industries.
----------------------------------------------------------------------------------------------------------------

Sector Z. Leather Tanning and Finishing
----------------------------------------------------------------------------------------------------------------
NA............................ 3111............................................. Leather Tanning and
Finishing.
----------------------------------------------------------------------------------------------------------------

Sector AA. Fabricated Metal Products
----------------------------------------------------------------------------------------------------------------
1*............................ 3411-3499........................................ Fabricated Metal Products,
Except Machinery and
Transportation Equipment and
Cutting, Engraving and
Allied Services.
3911-3915........................................ Jewelry, Silverware, and
Plated Ware.
2*............................ 3479............................................. Coating, Engraving, and
Allied Services.
----------------------------------------------------------------------------------------------------------------

Sector AB. Transportation Equipment, Industrial or Commercial Machinery
----------------------------------------------------------------------------------------------------------------
NA............................ 3511-3599 (except 3571-3579)..................... Industrial and Commercial
Machinery (except Computer
and Office Equipment--see
Sector AC).
NA............................ 3711-3799 (except 3731, 3732).................... Transportation Equipment
(except Ship and Boat
Building and Repairing--see
Sector R).
----------------------------------------------------------------------------------------------------------------

Sector AC. Electronic, Electrical, Photographic and Optical Goods
----------------------------------------------------------------------------------------------------------------
NA............................ 3612-3699........................................ Electronic, Electrical
Equipment and Components,
Except Computer Equipment.
3812-3873........................................ Measuring, Analyzing and
Controlling Instrument;
Photographic and Optical
Goods, Watches and Clocks.
3571-3579........................................ Computer and Office
Equipment.
----------------------------------------------------------------------------------------------------------------

Sector AD. Reserved for Facilities Not Covered Under Other Sectors and Designated by the Director
----------------------------------------------------------------------------------------------------------------
* Denotes subsector with analytical (chemical) monitoring requirements.
NA indicates those industry sectors in which subdivision into subsectors was determined to be not applicable.

The final MSGP modification of September 30, 1998 (63 FR 52430)
expanded the coverage of the 1995 MSGP to include a small number of
categories of facilities which had been covered by the 1992 baseline
industrial general permit but excluded from the MSGP. In Table 1 above,
these categories have been included in the appropriate sectors/
subsectors of the MSGP as determined by the September 30, 1998
modification.
With the September 30, 1998 modification, EPA believes that the
MSGP now covers all of the categories of industrial facilities which
may discharge storm water associated with industrial activity as
defined at 40 CFR 122.26(b)(14) (except construction activities
disturbing five or more acres which are permitted separately). However,
the September 30, 1998 modification also added another sector to the
MSGP (Sector AD) to cover any inadvertent omissions. EPA has retained
Sector AD in today's reissued MSGP.
Sector AD is further intended to provide a readily available means
for covering many of the storm water facilities which are designated
for permitting in accordance with NPDES regulations at 40 CFR
122.26(g)(1)(i). These regulations provide that permit applications may
be required within 180 days of notice for any discharges which
contribute to a violation of a water quality standard, or are
determined to be significant sources of pollutants.
EPA also recognizes that a new North American Industry
Classification System (NAICS) was recently adopted by the Office of
Management and Budget (62 FR 17288, April 9, 1997). NAICS replaces the
1987 standard industrial classification (SIC) code

[[Page 64753]]

system for the collection of statistical economic data. However, the
use of the new system for nonstatistical purposes is optional. EPA
considered the use of NAICS for the today's MSGP reissuance, but
elected to retain the 1987 SIC code system since the storm water
regulations (40 CFR 122.26(b)(14)) reference the previous system and
this system has generally proven to be adequate for identifying the
facilities covered by storm water regulations. EPA will consider
transitioning to the new NAICS system in future rule making.

V. Limitations on Coverage

A. Storm Water Discharges Subject to Effluent Guideline Limitations,
Including New Source Performance Standards

The general prohibition on coverage of storm water subject to an
effluent guideline limitation in the 1995 MSGP has been retained in
today's MSGP reissuance. Only those storm water discharges subject to
the following effluent guidelines are eligible for coverage (provided
they meet all other eligibility requirements):

Table 2.--Effluent Guidelines Applicable to Discharges That May be Eligible for Permit Coverage
----------------------------------------------------------------------------------------------------------------
New Source performance
Effluent guideline standards included in Sectors with affected
effluent guidelines? facilities
----------------------------------------------------------------------------------------------------------------
Runoff from material storage piles at cement Yes E
manufacturing facilities [40 CFR Part 411 Subpart
C (established February 23, 1977)].
Contaminated runoff from phosphate fertilizer Yes C
manufacturing facilities [40 CFR Part 418 Subpart
A (established April 8, 1974)].
Coal pile runoff at steam electric generating Yes O
facilities [40 CFR Part 423 (established November
19, 1982)].
Discharges resulting from spray down or Yes A
intentional wetting of logs at wet deck storage
areas [40 CFR Part 429, Subpart I (established
January 26, 1981)].
Mine dewatering discharges at crushed stone mines No J
[40 CFR part 436, Subpart B].
Mine dewatering discharges at construction sand No J
and gravel mines [40 CFR part 436, Subpart C].
Mine dewatering discharges at industrial sand No J
mines [40 CFR part 436, Subpart D].
Runoff from asphalt emulsion facilities [40 CFR Yes D
Part 443 Subpart A (established July 24, 1975)]..
Runoff from landfills, [40 CFR Part 445, Subpart A Yes K & L
and B (established February 2, 2000.].
----------------------------------------------------------------------------------------------------------------

Section 306 of the Clean Water Act (CWA) requires EPA to develop
performance standards for all new sources described in that section.
These standards apply to all facilities which go into operation after
the date the standards are promulgated. Section 511(c) of the CWA
requires the Agency to comply with the National Environmental Policy
Act (NEPA) prior to issuance of a permit under the authority of Section
402 of the CWA to facilities defined as a new source under Section 306.
The fact sheet for the 1995 MSGP described a process for ensuring
compliance with NEPA for the MSGP (60 FR 50809). This process, which is
repeated below, has been retained for the reissued MSGP. Additional
guidance is found in a new Addendum C to the final MSGP.
Facilities which are subject to the performance standards for new
sources as described in this section of the fact sheet must provide EPA
with an Environmental Information Document pursuant to 40 CFR 6.101
prior to seeking coverage under this permit. This information shall be
used by the Agency to evaluate the facility under the requirements of
NEPA in an Environmental Review. The Agency will make a final decision
regarding the direct or indirect impact of the discharge. The Agency
will follow all administrative procedures required in this process. The
permittee must obtain a copy of the Agency's final finding prior to the
submission of a Notice of Intent to be covered by this general permit.
In order to maintain eligibility, the permittee must implement any
mitigation required of the facility as a result of the NEPA review
process. Failure to implement mitigation measures upon which the
Agency's NEPA finding is based is grounds for termination of permit
coverage. In this way, EPA has established a procedure which allows for
the appropriate review procedures to be completed by this Agency prior
to the issuance of a permit under Section 402 of the CWA to an operator
of a facility subject to the new source performance standards of
Section 306 of the CWA. EPA believes that it has fulfilled its
requirements under NEPA for this Federal action under Section 402 of
the CWA.

B. Historic Preservation

The National Historic Preservation Act (NHPA) requires Federal
agencies to take into account the effects of Federal undertakings,
including undertakings on historic properties that are either listed
on, or eligible for listing on, the National Register of Historic
Places. The term ``Federal undertaking'' is defined in the existing
NHPA regulations to include any project, activity, or program under the
direct or indirect jurisdiction of a Federal agency that can result in
changes in the character or use of historic properties, if any such
historic properties are located in the area of potential effects for
that project, activity, or program. See 36 CFR 802(o). Historic
properties are defined in the NHPA regulations to include prehistoric
or historic districts, sites, buildings, structures, or objects that
are included in, or are eligible for inclusion in, the National
Register of Historic Places. See 36 CFR 802(e).
Federal undertakings include EPA's issuance of general NPDES
permits. In light of NHPA requirements, EPA included a provision in the
eligibility requirements of the 1995 MSGP for the consideration of the
effects to historic properties. That provision provided that an
applicant is eligible for permit coverage only if: (1) the applicant's
storm water discharges and BMPs to control storm water runoff do not
affect a historic property, or (2) the applicant has obtained, and is
in compliance with, a written agreement between the applicant and the
State Historic Preservation Officer (SHPO) that outlines all measures
to be taken by the applicant to mitigate or prevent adverse effects to
the historic property. See Part I.B.6, 60 FR 51112 (September 29,
1995). When applying for permit coverage, applicants were required to
certify in

[[Page 64754]]

the NOI that they are in compliance with the Part I.B.6 eligibility
requirements. Provided there are no other factors limiting permit
eligibility, MSGP coverage was then granted 48 hours after the postmark
on the envelope used to mail the NOI.
The September 30, 1998 modification included two revisions of the
original MSGP with respect to historic properties. First, EPA amended
the original Part I.B.6.(ii) to include a reference to Tribal Historic
Preservation Officers (THPOs) because MSGP coverage extends to Tribal
lands and in recognition of the central role Tribal governments play in
the protection of historic resources. Second, EPA included NHPA
guidance and a list of SHPO and THPO addresses in a new Addendum I to
the MSGP to assist applicants with the certification process for permit
eligibility under this condition.
For today's MSGP reissuance, EPA has modified slightly the
requirements of the first option for obtaining permit coverage to
enhance the protection of historic properties. Permit coverage is only
available if storm water and allowable non-storm water discharges and
``discharge-related activities'' do not affect historic properties.
``Discharge-related activities'' are defined to include activities
which cause, contribute to, or result in storm water and allowable non-
storm water point source discharges, and measures such as the siting,
construction and operation of BMPs to control, reduce or prevent
pollution in the discharges. Discharge-related activities are included
to ensure compliance with NHPA requirements to consider the effects of
activities which are related to the activity which is permitted, i.e.,
the storm water and non-storm water discharges. Because this change was
minor, EPA is relying on its 1995 and 1998 consultations with the
Advisory Council on Historic Preservation as its basis for reissuance
of this permit.
Also, as discussed in Section VI.A.1 below, EPA intends to modify,
contingent upon Office of Management and Budget review and approval,
the Notice of Intent form to require that operators identify which of
the above two options they are using to ensure eligibility for permit
coverage under the MSGP. The NHPA guidance has also been modified to
reflect the above pending changes, and appears in Addendum B in today's
notice rather than Addendum I. Until the revised form is approved and
issued, the current form (with minor clarifications) remains in effect.
Facilities seeking coverage under today's MSGP which cannot certify
compliance with the NHPA requirements must submit individual permit
applications to the permitting authority. For facilities already
covered by the existing MSGP, the deadline for the individual
applications is the same as that for NOIs requesting coverage under the
reissued MSGP (December 29, 2000).

C. Endangered Species

The Endangered Species Act (ESA) of 1973 requires Federal Agencies
such as EPA to ensure, in consultation with the U.S. Fish and Wildlife
Service (FWS) and the National Marine Fisheries Service (NMFS) (also
known collectively as the ``Services''), that any actions authorized,
funded, or carried out by the Agency (e.g., EPA issued NPDES permits
authorizing discharges to waters of the United States) are not likely
to jeopardize the continued existence of any Federally-listed
endangered or threatened species or adversely modify or destroy
critical habitat of such species (see 16 U.S.C. 1536(a)(2), 50 CFR 402
and 40 CFR 122.49(c)).
For the 1995 MSGP, EPA conducted formal consultation with the
Services which resulted in a joint Service biological opinion issued by
the FWS on March 31, 1995, and by the NMFS on April 5, 1995, which
concluded that the issuance and operation of the MSGP was not likely to
jeopardize the existence of any listed endangered or threatened
species, or result in the adverse modification or destruction of any
critical habitat.
The 1995 MSGP contained a number of conditions to protect listed
species and critical habitat. Permit coverage was provided only where:
The storm water discharge(s), and the construction of BMPs
to control storm water runoff, were not likely to jeopardize species
identified in Addendum H of the permit; or
The applicant's activity had received previous
authorization under the Endangered Species Act and established an
environmental baseline that was unchanged; or,
The applicant was implementing appropriate measures as
required by the Director to address jeopardy.
For today's MSGP reissuance, EPA has modified the ESA-related
requirements for obtaining permit coverage to enhance the protection of
listed species. First, permit coverage is only available if storm water
and allowable non-storm water discharges and ``discharge-related
activities'' result in no jeopardy to listed species. ``Discharge-
related activities'' are defined to include activities which cause,
contribute to or result in storm water and allowable non-storm water
point source discharges, and measures such as the siting, construction
and operation of BMPs to control, reduce or prevent pollution in the
discharges. Discharge-related activities are included for compliance
with ESA requirements to consider the effects of activities which are
related to the activity which is permitted, i.e., the storm water and
non-storm water discharges.
In addition, operators seeking coverage under the reissued MSGP
must certify that they are eligible for coverage under one of the
following five options which are provided in Parts 1.2.3.6.3.1 through
5 of the permit:
1. No endangered or threatened species or critical habitat are in
proximity to the facility or the point where authorized discharges
reach the receiving water; or
2. In the course of a separate federal action involving the
facility (e.g., EPA processing request for an individual NPDES permit,
issuance of a CWA Section 404 wetlands dredge and fill permit, etc.),
formal or informal consultation with the Fish and Wildlife Service and/
or the National Marine Fisheries Service under Section 7 of the ESA has
been concluded and that consultation:
(a) addressed the effects of the storm water and allowable non-
storm water discharges and discharge-related activities on listed
species and critical habitat and
(b) the consultation resulted in either a no jeopardy opinion or a
written concurrence by the Service(s) on a finding that the storm water
and allowable non-storm water discharges and discharge-related
activities are not likely to jeopardize listed species or critical
habitat; or
3. The activities are authorized under Section 10 of the ESA and
that authorization addresses the effects of the storm water and
allowable non-storm water discharges and discharge-related activities
on listed species and critical habitat; or
4. Using due diligence, the operator has evaluated the effects of
the storm water discharges, allowable non-storm water discharges, and
discharge-related activities on listed endangered or threatened species
and critical habitat and does not have reason to believe listed species
or critical habitat would be jeopardized; or
5. The storm water and allowable non-storm water discharges and
discharge-related activities were already addressed in another
operator's

[[Page 64755]]

certification of eligibility under Part 1.2.3.6.3.1 through 1.2.3.6.3.4
which included the facility's activities. By certifying eligibility
under this Part, a permittee agrees to comply with any measures or
controls upon which the other operator's certification was based.
The first four options listed above are similar to the eligibility
provisions of the 1995 MSGP. Option 5 was added to account for
situations such as an airport facility where one operator (e.g., the
airport authority) may have covered the entire airport through its
certification. Option 5 allows other operators to take advantage of
such a certification without repeating the reviews conducted by the
first operator. Option 1 applies to operators who are not jeopardizing
endangered species because listed species simply are not in proximity
to their facility. Option 4 applies to operators who have endangered
species nearby and must look more closely at potential jeopardy and may
need to adopt measures to reduce the risk of jeopardy to listed species
or critical habitat. The provision of the two options to determine that
a facility is unlikely to jeopardize listed species, coupled with the
pending new NOI requirement to indicate whether or not the Service was
contacted in making the determination, will also allow for better
oversight of the permit. Under the 1995 permit, there was no way to
tell from the NOI information whether the decision on eligibility was
due to no species in the county, a discussion with the Service, or a
simple unilateral decision by the operator.
Addendum H of the 1995 MSGP provided instructions to assist
permittees in determining whether they met the permit's ESA-related
eligibility requirements. For today's reissued MSGP, this guidance has
been updated to reflect the above requirements and appears as Addendum
A. As noted in Section VI.A.1 below, EPA intends to modify the Notice
of Intent form to conform with new ESA requirements discussed above.
Addendum H of the 1995 MSGP contained a list of proposed and listed
endangered and threatened species that could be jeopardized by the
discharges and measures to control pollutants in the discharges. EPA
reinitiated and completed formal consultation with the Services for the
September 30, 1998 modification of the MSGP. As a result of this
consultation and in response to public comments on the modification,
EPA updated the species list in Addendum H to include species that were
listed or proposed for listing since the Addendum H list was originally
compiled on March 31, 1995. EPA also decided to expand the list to
include all of the terrestrial (i.e., non-aquatic) listed and proposed
species in recognition that those species may be impacted by permitted
activities such as the construction and operation of the BMPs. The
September 30, 1998 MSGP modification included the species list updated
as of July 8, 1998 (63 FR 52494). The species list is also being
updated on a regular basis and an electronic copy of the list is
available at the Office of Wastewater Management website at ``http://
www.epa.gov/owm/esalst2.htm''. The information may also be obtained by
contacting the Services. The permittee is responsible for obtaining the
updated information.
Based on comments received on the proposed MSGP on March 30, 2000
(65 FR 17010), the final permit requires facility operators to consider
only listed endangered or threatened species, and not species proposed
to be listed. Further explanation for the change can be found in
Section IX of this notice.
On August 10, 2000, EPA initiated informal consultation with FWS
and NMFS on EPA's finding of no likelihood of adverse effect on
threatened and endangered species and critical habitat resulting from
issuance of MSGP-2000. On September 22, 2000 FWS concurred with EPA's
finding.
To be eligible for coverage under today's reissued MSGP, facilities
must review the updated list of species and their locations in
conjunction with the Addendum A instructions for completing the
application requirements under this permit. If an applicant determines
that none of the species identified in the updated species list is
found in the county in which the facility is located, then there is a
likelihood of no jeopardy and they are eligible for permit coverage.
Applicants must then certify that their storm water and allowable non-
storm water discharges, and their discharge-related activities, are not
likely to jeopardize species and will be granted MSGP permit coverage
48 hours after the date of the postmark on the envelope used to mail the
NOI form, provided there are no other factors limiting permit eligibility.
If listed species are located in the same county as the facility
seeking MSGP coverage, then the applicant must determine whether the
species are in proximity to the storm water or allowable non-storm
water discharges or discharge-related activities at the facility. A
species is in proximity to a storm water or allowable non-storm water
discharge when the species is located in the path or down gradient area
through which or over which the point source discharge flows from
industrial activities to the point of discharge into the receiving
water, and once discharged into the receiving water, in the immediate
vicinity of, or nearby, the discharge point. A species is also in
proximity if it is located in the area of a site where discharge-
related activities occur. If an applicant determines there are no
species in proximity to the storm water or allowable non-storm water
discharges, or discharge-related activities, then there is no
likelihood of jeopardizing the species and the applicant is eligible
for permit coverage.
If species are in proximity to the storm water or allowable non-
storm water discharges or discharge-related activities, as long as they
have been considered as part of a previous ESA authorization of the
applicant's activity, and the environmental baseline established in
that authorization is unchanged, the applicant may be covered under the
permit. The environmental baseline generally includes the past and
present impacts of all Federal, state and private actions that were
occurring at the time the initial NPDES authorization and current ESA
section 7 action by EPA or any other federal agency was taken.
Therefore, if a permit applicant has received previous authorization
and nothing has changed or been added to the environmental baseline
established in the previous authorization, then coverage under this
permit will be provided.
In the absence of such previous authorization, if species
identified in the updated species list are in proximity to the
discharges or discharge-related activities, then the applicant must
determine whether there is any likely jeopardy to the species. This is
done by the applicant conducting a further examination or
investigation, or an alternative procedure, as described in the
instructions in Addendum A of the permit. If the applicant determines
that there is no likely jeopardy to the species, then the applicant is
eligible for permit coverage. If the applicant determines that there
likely is, or will likely be any jeopardy, then the applicant is not
eligible for MSGP coverage unless or until he or she can meet one of
the other eligibility conditions.
All dischargers applying for coverage under the MSGP must provide
in the application information on the Notice of Intent form: (1) A
determination as to whether there are any listed species in proximity
to the storm water or allowable non-storm water discharges or discharge
related activity, and (2) (when

[[Page 64756]]

EPA receives approval from the Office of Management and Budget and
issues the revised form) an indication of which option under Part
1.2.3.6.3 of the MSGP they claim eligibility for permit coverage, and
(3) a certification that their storm water and allowable non-storm
water discharges and discharge-related activities are not likely to
jeopardize listed species, or are otherwise eligible for coverage due
to a previous authorization under the ESA. Coverage is contingent upon
the applicant's providing truthful information concerning certification
and abiding by any conditions imposed by the permit.
Dischargers who cannot determine if they meet one of the endangered
species eligibility criteria cannot sign the certification to gain
coverage under the MSGP and must apply to EPA for an individual NPDES
storm water permit. For facilities already covered by the 1995 MSGP,
the deadline for the individual applications is the same as that for
NOIs requesting coverage under the reissued MSGP (December 29, 2000).
As appropriate, EPA will conduct ESA section 7 consultation when
issuing such individual permits.
Regardless of the above conditions, EPA may require that a
permittee apply for an individual NPDES permit on the basis of possible
jeopardy to species or critical habitats. Where there are concerns that
coverage for a particular discharger is not sufficiently protective of
listed species, the Services (as well as any other interested parties)
may petition EPA to require that the discharger obtain an individual NPDES
permit and conduct an individual section 7 consultation as appropriate.
In addition, the Assistant Administrator for Fisheries for the
National Oceanic and Atmospheric Administration, or his/her authorized
representative, or the U.S. Fish and Wildlife Service (as well as any
other interested parties) may petition EPA to require that a permittee
obtain an individual NPDES permit. The permittee is also required to
make the SWPPP, annual site compliance inspection report, or other
information available upon request to the Assistant Administrator for
Fisheries for the National Oceanic and Atmospheric Administration, or
his/her authorized representative, or the U.S. Fish and Wildlife
Service Regional Director, or his/her authorized representative.
These mechanisms allow for the broadest and most efficient coverage
for the permittee while still providing for the most efficient
protection of endangered species. They significantly reduce the number
of dischargers that must be considered individually and therefore allow
the Agency and the Services to focus their resources on those
discharges that are indeed likely to jeopardize listed species.
Straightforward mechanisms such as these allow applicants more
immediate access to permit coverage, and eliminates ``permit limbo''
for the greatest number of permitted discharges. At the same time it is
more protective of endangered species because it allows both agencies
to focus on the real problems, and thus, provide endangered species
protection in a more expeditious manner.

D. New Storm Water Discharges to Water Quality-Impaired or Water
Quality-Limited Receiving Waters

Today's final MSGP includes a new provision (Part 1.2.3.8) which
establishes eligibility conditions with regard to discharges to water
quality-limited or water quality-impaired waters. For the purposes of
this permit, ``water quality-impaired'' refers to a stream, lake,
estuary, etc. that is not currently meeting its assigned water quality
standards. These waters are also referred to as ``303(d) waters'' due
to the requirement under that section of the CWA for States to
periodically list all state waters that are not meeting their water
quality standards. ``Water quality-limited waters'' refers to
waterbodies for which a State had to develop individual Total Maximum
Daily Loads (TMDLs), a tool which helps waterbodies meet their water
quality standards. A TMDL is a calculation of the maximum amount of a
pollutant that a waterbody can receive and still meet water quality
standards, and an allocation of that amount to the pollutant's sources.
Water quality standards are set by States, Territories, and Tribes.
They identify the uses for each waterbody, for example, drinking water
supply, contact recreation (swimming), and aquatic life support
(fishing), and the scientific criteria to support that use. The CWA,
section 303, establishes the water quality standards and TMDL programs.
Prior to submitting a Notice of Intent, any new discharger (see 40
CFR 122.2) to a 303(d) waterbody must be able to demonstrate compliance
with 40 CFR 122.4(i). In essence, you are a new discharger if your
facility started discharging after August 13, 1979 and your storm water
was not previously permitted. Any discharger to a waterbody for which
there is an approved TMDL must confirm that the TMDL allocated a
portion of the load for storm water point source discharges. These
provisions apply only to discharges containing the pollutant(s) for
which the waterbody is impaired or the TMDL developed.
Part 1.2.3.8.1 (which applies to new storm water discharges and not
to existing discharges) is designed to better ensure compliance with
NPDES regulations at 40 CFR 122.4(i), which include certain special
requirements for new discharges into impaired waterbodies. Lists of
impaired waterbodies (sometimes referred to as 303(d) waterbodies) may
be obtained from appropriate State environmental offices or their
internet sites. NPDES regulations at 40 CFR 122.4(i) prohibit
discharges unless it can be shown that:

1. There are sufficient remaining pollutant load allocations to
allow for the discharge; and
2. The existing dischargers into that segment are subject to
compliance schedules designed to bring the segments into compliance
with applicable water quality standards.

Part 1.2.3.8.2 (which applies to both new and existing storm water
discharges) is designed to better ensure compliance with NPDES
regulations at 40 CFR 122.4(d), which requires compliance with State
water quality standards. The eligibility condition prohibits coverage
of new or existing discharges of a particular pollutant where there is
a TMDL, unless the discharge is consistent with the TMDL. Lists of
waterbodies with TMDLs may be obtained from appropriate State
environmental offices or their internet sites and from EPA's TMDL
internet site at http://www.epa.gov/owow/tmdl/index.html.

E. Storm Water Discharges Subject to Anti-Degradation Provisions of
Water Quality Standards

Part 1.2.3.9 of today's final MSGP includes a new provision which
clarifies that discharges which do not comply with applicable anti-
degradation provisions of State water quality standards are not
eligible for coverage under the MSGP. This eligibility condition is
designed to better ensure compliance with NPDES regulations at 40 CFR
122.4(d), which requires compliance with State water quality standards.
Anti-degradation provisions may be obtained from the appropriate State
environmental office or their internet sites.

F. Storm Water Discharges Previously Covered by an Individual Permit

The 1995 MSGP contained general prohibitions on coverage where a
discharge was covered by another NPDES permit (Part I.B.3.d) and where
a permit had been terminated other than at the request of the permittee
(Part

[[Page 64757]]

I.B.3.e.). It was therefore possible to obtain coverage by requesting
termination of an individual permit and then submitting an NOI for
coverage under the MSGP. This could be desirable from both the
discharger's and EPA's perspective for a variety of reasons, for
example, where a wastewater permit included storm water outfalls, but
the wastewater outfalls had been eliminated. Being able to use the
general permit would reduce the application cost to the permittee and
the administrative burden of permit issuance to the Agency. Today's
permit clarifies the conditions under which transfer from an individual
permit to this general permit would be acceptable (Part 1.2.3.3.2).
In order to avoid conflict with the anti-backsliding provisions of
the CWA, transfer from an individual permit to the MSGP will only be
allowed where both of the following conditions are met:
The individual permit did not contain numeric water
quality-based effluent limitations developed for the storm water
component of the discharge; and
The permittee includes any specific BMPs for storm water
required under the individual permit in their storm water pollution
prevention plan.
Implementation of a comprehensive Storm Water Pollution Prevention
Plan for the entire facility (as opposed to selected outfalls in an
individual permit) and compliance with all other conditions of the MSGP
is deemed to be at least as stringent a technology-based permit limit
as the conditions of the individual permit. This assumption is only
made where the previous permit did not contain any specific water
quality-based effluent limitations on storm water discharges (e.g.,
storm water contained high levels of zinc and the individual permit
contained a zinc limit developed to ensure compliance with the State
water quality criteria).

G. Requiring Coverage Under an Individual Permit or an Alternate
General Permit

Part 9.12 of today's final MSGP provides that EPA may require an
individual permit or coverage under a separate general permit instead
of today's MSGP. This is in accord with NPDES regulations at 40 CFR
122.28(b)(3). These regulations also provide that any interested party
may petition EPA to take such an action. The issuance of the individual
permit or alternate general permit would be in accordance with 40 CFR
Part 124 and would provide for public comment and appeal of any final
permit decision. The circumstances in which such an action would be
taken are set forth at 40 CFR 122.28(b)(3).

VI. Summary of Common Permit Conditions

The following section describes the permit conditions common to
discharges from all the industrial activities covered by today's final
MSGP. These conditions are largely the same as the conditions of the
1995 MSGP.

A. Notification Requirements

General permits for storm water discharges associated with
industrial activity must require the submission of a Notice of Intent
(NOI) prior to the authorization of such discharges (see 40 CFR
122.28(b)(2)(i), April 2, 1992 (57 FR 11394)). Consistent with these
regulatory requirements, today's final MSGP establishes NOI
requirements. These requirements apply to facilities currently covered
by the 1995 MSGP, as well as new facilities seeking coverage. EPA made
minor modifications to the NOI form to allow the discharger, the Agency
and the public to more easily determine sector-specific conditions that
will apply to the facility. Further modifications proposed on March 30,
2000 (65 FR 17010) require review and approval by the Office of
Management and Budget under the Paperwork Reduction Act. EPA will have
all appropriate approvals in place prior to requiring the use of the
expanded NOI form. In the interim the NOI form with the minor
modifications, contained in this notice, is in effect.
The information requirements of the revised NOI form are described
below:
1. Content of NOI
a. An indication of which permit the operator is filing the NOI for
(e.g., a facility in New Hampshire would be filing for coverage under
permit NHR05*###, a facility located on Navajo Reservation lands in New
Mexico under the AZR05*##I permit, a private contractor operating a
federal facility in Colorado that is not located on Indian Country
lands under the COR05*##F permit, etc.);
b. The name, address, and telephone number of the operator filing
the NOI for permit coverage;
c. An indication of whether the owner of the site is a Federal,
State, Tribal, private, or other public entity;
d. The name (or other identifier), address, county, and latitude/
longitude of the facility for which the NOI is submitted (latitude/
longitude will be accepted in either degree-minute-second or decimal
format);
e. An indication of whether the facility is located on Indian
Country lands;
f. An indication of whether the facility is a federal facility
operated by the federal government;
g. The name of the receiving water(s);
h. The name of the municipal operator if the discharge is through a
municipal separate storm sewer system prior to discharge to a water of
the U.S.;
i. Up to four 4-digit Standard Industrial Classification (SIC)
codes that best represent the principal products produced or services
rendered, including hazardous waste treatment, storage, or disposal
activities, land disposal facilities that receive or have received any
industrial waste, steam electric power generating facilities, or
treatment works treating domestic sewage;
j. Identification of applicable sector(s) in this permit, as
designated in Table 1, for facility discharges associated with
industrial activity the operator wishes to have covered under this permit;
k. Certification that a storm water pollution prevention plan
(SWPPP) meeting the requirements of Part 4 has been developed (with a
copy of the permit language in the SWPPP);
l. Based on the instructions in Addendum A, whether any listed
threatened or endangered species, or designated critical habitat, are
in proximity to the storm water discharges or storm water discharge-
related activities to be covered by this permit;
m. Whether any historic property listed or eligible for listing on
the National Register of Historic Places is located on the facility or
in proximity to the discharge;
n. A signed and dated certification, signed by a authorized
representative of the facility as detailed in Part 9.7 and maintained
with the SWPPP that certifies the following:

I certify under penalty of law that I have read and understand the
Part 1.2 eligibility requirements for coverage under the multi-
sector storm water general permit including those requirements
relating to the protection of endangered or threatened species or
critical habitat. To the best of my knowledge, the storm water and
allowable non-storm discharges authorized by this permit (and
discharged related activities), are not likely and will not likely,
jeopardize endangered or threatened species or critical habitat, or
are otherwise eligible for coverage under Part 1.2.3.6 of the
permit. To the best of my knowledge, I further certify that such
discharges and discharge related activities do not have an effect on
properties listed or eligible for listing on the National Register
of Historic Places under the National Historic Preservation Act, or
are otherwise eligible for coverage under Part 1.2.3.7 of the permit. I

[[Page 64758]]

understand that continued coverage under the multi-sector storm
water general permit is contingent upon maintaining eligibility as
provided for in Part 1.2.

Two additional components of the form pending approval by the
Office of Management and Budget are:

a. under which Part(s) of Part 1.2.3.6 (Endangered Species) the
applicant is certifying eligibility and whether the FWS or NMFS was
involved in making the determination of eligibility;
b. under which Part(s) of Part 1.2.3.7 (Historic Properties) the
applicant is certifying eligibility and whether the SHPO or THPO was
involved in the determination of eligibility.

The NOI must be signed in accordance with the signatory
requirements of 40 CFR 122.22. A complete description of these
signatory requirements is provided in the instructions accompanying the
NOI. Completed NOI forms must be submitted to the Storm Water Notice of
Intent (4203), 1200 Pennsylvania Avenue NW., Washington, DC 20460.
In the future (but not at the present time), EPA may also allow
alternate means of NOI submission (such as electronic submission). An
alternate means of NOI submission may be used by operators provided EPA
has informed the operator of the acceptability of the alternative.
2. Deadlines
For facilities currently covered by the 1995 MSGP, the deadline for
submission of an NOI requesting coverage under the reissued MSGP is
January 29, 2001 (90 days after expiration of the 1995 MSGP). For these
facilities, the requirements of the 1995 MSGP are incorporated into
today's MSGP and continue to apply during the interim period subsequent
to the expiration of the 1995 MSGP, but prior to submission of the NOI
requesting coverage under the reissued MSGP. In response to a question
from some permittees, EPA wishes to clarify that there is no need to
submit an NOT to rescind coverage under the 1995 MSGP.
Facilities currently covered by the 1995 MSGP who cannot
immediately determine if they are eligible for coverage under today's
reissued MSGP may nevertheless be covered for up to 270 days provided
an application for an alternative permit is submitted within 90 days.
This interim coverage allows permit coverage while the permittee
assesses his eligibility for the reissued MSGP and, if necessary, still
meet the 180 day lead time required for applications for individual
permits.
For facilities commencing operations after reissuance of the MSGP,
the NOI must be submitted at least two days prior to the commencement
of the new industrial activity. New operators of existing facilities
must also submit the NOI at least two days prior to assuming
operational control at existing facilities.
Dischargers who submit a complete NOI in accordance with the MSGP
requirements are authorized to discharge storm water associated with
industrial activity two days after the date the NOI is postmarked,
unless otherwise notified by EPA. EPA may deny coverage under the MSGP
and require submission of an individual NPDES permit application based
on a review of the completeness and/or content of the NOI or other
information (e.g., Endangered Species Act compliance, National Historic
Preservation Act Compliance, water quality information, compliance
history, history of spills, etc.). Where EPA requires a discharger
authorized under the MSGP to apply for an individual NPDES permit (or
an alternative general permit), EPA will notify the discharger in
writing that a permit application (or different NOI) is required by an
established deadline. Coverage under the MSGP will automatically
terminate if the discharger fails to submit the required permit
application in a timely manner. Where the discharger does submit a
requested permit application, coverage under the MSGP will
automatically terminate on the effective date of the issuance or denial
of the individual NPDES permit or the alternative general permit as it
applies to the individual permittee.
A discharger is not precluded from submitting an NOI at a later
date than described above. However, in such instances, EPA may bring
appropriate enforcement actions.
3. Municipal Separate Storm Sewer System Operator Notification
Operators of storm water discharges associated with industrial
activity that discharge through a large or medium municipal separate
storm sewer system (MS4) or a municipal system designated by the
Director,\1\ must (upon request of the MS4 operator) submit a copy of
the NOI to the municipal operator of the system receiving the
discharge. This requirement of today's MSGP differs from the 1995 MSGP
which had required that a copy of the NOI be sent to the MS4 operator.
Today's MSGP has been modified in this regard to reduce paperwork
requirements, and in consideration of the fact that most large and
medium MS4 operators already have good information concerning the
industrial facilities discharging into their MS4s.
---------------------------------------------------------------------------

\1\ The terms large and medium municipal separate storm sewer
systems (systems serving a population of 100,000 or more) are
defined at 40 CFR 122.26(b)(4) and (7). Some of the cities and
counties in which these systems are found are listed in Appendices
F, G, H, and I to 40 CFR Part 122. Other municipal systems have been
designated by EPA on a case-by-case basis or have brought into the
program based upon the 1990 Census.
---------------------------------------------------------------------------

EPA wishes to ensure a coordinated program between EPA and
operators of MS4s for controlling pollutants in storm water discharges
associated with industrial activity which enter an MS4. Such a
coordinated program was intended by EPA's original storm water permit
application regulations of November 16, 1990 (55 FR 48063). Additional
discussion of this matter can be found in the original proposed MSGP
(58 FR 61146).
4. Notice of Termination
Where a discharger is able to eliminate the storm water discharges
associated with industrial activity from a facility, the discharger may
submit a Notice of Termination (NOT) form (or photocopy thereof)
provided by the Director. Today's final MSGP also differs from the 1995
MSGP by requiring that an NOT be submitted within 30 days after one or
both of the following two conditions having been met:
a. a new owner/operator has assumed responsibility for the
facility; or
b. the permittee has ceased operations at the facility and there no
longer are discharges of storm water associated with industrial
activity from the facility;
A copy of the NOT and instructions for completing the NOT are
included in Addendum E. The NOT form requires the following information:
a. Name, mailing address, and location of the facility for which
the notification is submitted. Where a street address for the site is
not available, the location of the approximate center of the site must
be described in terms of the latitude and longitude to the nearest 15
seconds, or the section, township and range to the nearest quarter;
b. The name, address and telephone number of the operator addressed
by the Notice of Termination;
c. The NPDES permit number for the storm water discharge associated
with industrial activity identified by the NOT;
d. An indication of whether the storm water discharges associated
with industrial activity have been eliminated or the operator of the
discharges has changed; and
e. The following certification:

I certify under penalty of law that all storm water discharges
associated with industrial activity from the identified facility that are

[[Page 64759]]

authorized by an NPDES general permit have been eliminated or that I
am no longer the operator of the industrial activity. I understand
that by submitting this Notice of Termination I am no longer
authorized to discharge storm water associated with industrial
activity under this general permit, and that discharging pollutants
in storm water associated with industrial activity to waters of the
United States is unlawful under the Clean Water Act where the
discharge is not authorized by an NPDES permit. I also understand
that the submission of this notice of termination does not release
an operator from liability for any violations of this permit or the
Clean Water Act.

NOTs are to be sent to the Storm Water Notice of Termination
(4203), 1200 Pennsylvania Avenue NW., Washington, DC 20460.
The NOT must be signed in accordance with the signatory
requirements of 40 CFR 122.22. A complete description of these signatory
requirements is provided in the instructions accompanying the NOT.
5. Conditional Exclusion for No Exposure
Today's final MSGP includes a special provision (Part 1.5 of the
permit) which provides that a facility may discontinue permit coverage
if the facility determines that it is eligible for the ``no exposure''
permit exemption which was created by EPA as part of the promulgation
of the Phase II storm water regulations (64 FR 68722). A notice of
termination is not required to discontinue permit coverage under these
circumstances. However, in accordance with the Phase II regulations, a
no exposure certification must be filed with the permitting authority.
It should also be noted that facilities operating under the
existing MSGP are eligible, as of the effective date of the Phase II
regulations, to submit no exposure certifications immediately if they
meet the criteria for no exposure. No exposure certification renewals
must be submitted five years from the time they are first submitted
(assuming the facility still qualifies for the exemption). If
conditions change at a facility such that renewed MSGP coverage is
needed, the facility may submit an NOI requesting renewed coverage.
In response to comments on this matter, EPA has included a copy of
the ``No Exposure'' form and instructions as Addendum F to today's permit.
EPA has also prepared a new guidance document entitled ``Guidance
Manual for Conditional Exclusion from Storm Water Permitting Based on
``No Exposure'' of Industrial Activities to Storm Water'' to assist
permittees in determining eligibility for the exemption. This guidance
document is available on EPA's storm water website. In addition, EPA
recently conducted a mass mailing to permittees (as well as other
stakeholder groups) alerting them to the no exposure exemption.

B. Special Conditions

The conditions of today's final MSGP have been designed to comply
with the technology-based standards of the CWA (BAT/BCT). Based on a
consideration of the appropriate factors for BAT and BCT requirements,
and a consideration of the factors and options for controlling
pollutants in storm water discharges associated with industrial
activity, the final MSGP lists a set of tailored requirements for
developing and implementing storm water pollution prevention plans
(SWPPPs) and, for selected discharges, numeric effluent limitations.\2\
This is the same approach as in the 1995 MSGP.
---------------------------------------------------------------------------

\2\ Section 9.12.2 of the final MSGP provides that facility
operators with storm water discharges associated with industrial
activity who, based on an evaluation of site specific conditions,
believe that the appropriate conditions of this permit do not
adequately represent BAT and BCT requirements for the facility may
submit to the Director an individual application (Form 1 and Form
2F). A detailed explanation of the reasons why the conditions of the
available general permits do not adequately represent BAT and BCT
requirements for the facility as well as any supporting
documentation must be included.
---------------------------------------------------------------------------

Section VIII of the fact sheet for the 1995 MSGP summarized the
industry-specific BMP options for controlling pollutants in storm water
discharges associated with industrial activity for the various
industrial sectors covered by the MSGP. Section VIII of today's fact
sheet does not repeat the information from the 1995 fact sheet;
however, updates are provided as appropriate.
Section VI.B.4 of today's fact sheet discusses the storm water
discharges which are subject to numeric effluent limitations. For other
discharges covered by the final MSGP, the permit conditions reflect
EPA's decision to identify a number of BMP and traditional storm water
management practices which prevent pollution in storm water discharges
as the BAT/BCT level of control for the majority of storm water
discharges covered by this permit. The permit conditions applicable to
these discharges are not numeric effluent limitations, but rather are
flexible requirements for developing and implementing site specific
plans to minimize and control pollutants in storm water discharges
associated with industrial activity.
EPA is authorized under 40 CFR 122.44(k)(2) to impose BMPs in lieu
of numeric effluent limitations in NPDES permits when the Agency finds
numeric effluent limitations to be infeasible. EPA may also impose BMPs
which are ``reasonably necessary * * * to carry out the purposes of the
Act'' under 40 CFR 122.44(k)(3). Both of these standards for imposing
BMPs were recognized in NRDC v. Costle, 568 F.2d 1369, 1380 (D.C. Cir.
1977). The conditions in today's final MSGP are issued under the
authority of both of these regulatory provisions. The pollution
prevention or BMP requirements in today's final MSGP operate as
limitations on effluent discharges that reflect the application of BAT/
BCT. This is because the BMPs identified require the use of source
control technologies which, in the context of the MSGP, are the best
available of the technologies economically achievable (or the
equivalent BCT finding). See NRDC v. EPA, 822 F.2d 104, 122-23 (D.C.
Cir. 1987) (EPA has substantial discretion to impose nonquantitative
permit requirements pursuant to Section 402(a)(1)). See also EPA's
memorandum of August 1, 1996 entitled ``Interim Permitting Approach for
Water Quality-Based Effluent Limitations for Storm Water Discharges.''
1. Prohibition of Non-storm Water Discharges
Today's final MSGP includes basically the same provisions
pertaining to non-storm water discharges as the 1995 MSGP. Like the
1995 MSGP, today's MSGP does not authorize non-storm water discharges
that are mixed with storm water except as provided below. Today's MSGP
does authorize one additional non-storm water discharge: mist
discharges which originate from cooling towers and which are deposited
at an industrial facility and may be discharged. During the term of the
1995 MSGP, these discharges were brought to the attention of EPA with a
request that the discharges be authorized under the reissued MSGP. The
mist discharges are authorized under today's MSGP provided:
a. The permittee has evaluated the potential for the discharges to
be contaminated by chemicals used in the cooling tower and determined
that the levels of such chemicals in the discharges would not cause or
contribute to a violation of an applicable water quality standard; and
b. The permittee has addressed this source of pollutants with
appropriate BMPs in the SWPPP.
The other non-storm water discharges that are authorized under
today's final MSGP are the same as those in the 1995 MSGP and include
discharges from fire

[[Page 64760]]

fighting activities; fire hydrant flushings; potable water sources,
including waterline flushings; irrigation drainage; lawn watering;
routine external building washdown without detergents; pavement
washwaters where spills or leaks of toxic or hazardous materials have
not occurred (unless all spilled material has been removed) and where
detergents are not used; air conditioning condensate; compressor
condensate; uncontaminated ground water or spring water; and foundation
or footing drains where flows are not contaminated with process
materials such as solvents that are combined with storm water
discharges associated with industrial activity. In response to a
comment, the final MSGP includes ``potable water sources, including
waterline flushings'' on the list of authorized non-storm water
discharges, but deletes the reference to ``drinking fountain water,''
which a commenter felt could conflict with local ordinances.
To be authorized under today's MSGP, these other sources of non-
storm water (except flows from fire fighting activities) must be
identified in the SWPPP prepared for the facility. (SWPPP requirements
are discussed in more detail below). Where such discharges occur, the
SWPPP must also identify and ensure the implementation of appropriate
pollution prevention measures for the non-storm water component(s) of
the discharge.
Today's final MSGP does not require pollution prevention measures
to be identified and implemented for non-storm water flows from fire-
fighting activities because these flows will generally be unplanned
emergency situations where it is necessary to take immediate action to
protect the public.
The prohibition of unpermitted non-storm water discharges in
today's MSGP ensures that non-storm water discharges (except for those
classes of non-storm water discharges that are conditionally authorized
in Part 1.2.2.2 of the MSGP) are not inadvertently authorized by the
permit. Where a storm water discharge is mixed with non-storm water
that is not authorized by today's MSGP or another NPDES permit, the
discharger should submit the appropriate application forms (Forms 1,
2C, and/or 2E) to gain permit coverage of the non-storm water portion
of the discharge.
2. Releases of Reportable Quantities of Hazardous Substances and Oil
As discussed below, today's final MSGP includes the same provisions
pertaining to releases of reportable quantities of hazardous substances
and oil as the 1995 MSGP.
a. Today's final MSGP provides that the discharge of hazardous
substances or oil from a facility must be eliminated or minimized in
accordance with the SWPPP developed for the facility. Where a permitted
storm water discharge contains a hazardous substance or oil in an
amount equal to or in excess of a reporting quantity established under
40 CFR Part 117, or 40 CFR Part 302 during a 24-hour period, the
following actions must be taken:
(1) Any person in charge of the facility that discharges hazardous
substances or oil is required to notify the National Response Center
(NRC) (800-424-8802; in the Washington, DC, metropolitan area, 202-426-
2675) in accordance with the requirements of 40 CFR Part 117, and 40
CFR Part 302 as soon as they have knowledge of the discharge.
(2) The SWPPP for the facility must be modified within 14 calendar
days of knowledge of the release to provide a description of the
release, an account of the circumstances leading to the release, and
the date of the release. In addition, the plan must be reviewed to
identify measures to prevent the reoccurrence of such releases and to
respond to such releases, and it must be modified where appropriate.
(3) The permittee must also submit to EPA within 14 calendar days
of knowledge of the release a written description of the release
(including the type and estimate of the amount of material released),
the date that such release occurred, the circumstances leading to the
release, and steps to be taken to modify the SWPPP for the facility.
b. Anticipated discharges containing a hazardous substance in an
amount equal to or in excess of reporting quantities are those caused
by events occurring within the scope of the relevant operating system.
Facilities that have more than one anticipated discharge per year
containing a hazardous substance in an amount equal to or in excess of
a reportable quantity are required to:
(1) Submit notifications of the first release that occurs during a
calendar year (or for the first year of this permit, after submission
of an NOI); and
(2) Provide a written description in the SWPPP of the dates on
which such releases occurred, the type and estimate of the amount of
material released, and the circumstances leading to the releases. In
addition, the SWPPP must address measures to minimize such releases.
c. Where a discharge of a hazardous substance or oil in excess of
reporting quantities is caused by a non-storm water discharge (e.g., a
spill of oil into a separate storm sewer), that discharge is not
authorized by the MSGP and the discharger must report the discharge as
required under 40 CFR Part 110, 40 CFR Part 117, or 40 CFR Part 302. In
the event of a spill, the requirements of Section 311 of the CWA and
other applicable provisions of Sections 301 and 402 of the CWA continue
to apply. This approach is consistent with the requirements for
reporting releases of hazardous substances and oil that make a clear
distinction between hazardous substances typically found in storm water
discharges and those associated with spills that are not considered
part of a normal storm water discharge (see 40 CFR 117.12(d)(2)(i)).
3. Co-located Industrial Facilities
Like the 1995 MSGP, today's MSGP includes requirements pertaining
to co-located industrial facilities. However, these requirements have
been modified from the requirements of the 1995 MSGP to clarify their
applicability. Co-located industrial activities occur when activities
being conducted onsite fall into more than one of the categories of the
industrial facilities listed in Part 1.2.1 of today's MSGP (e.g., a
landfill at a wood treatment facility). Facilities operating under the
1995 MSGP have sometimes been unclear whether certain limited
activities (e.g., minor vehicle maintenance activities at an industrial
plant) would trigger the MSGP's requirements regarding co-located
activities.
If you have co-located industrial activities on-site that are
described in a sector(s) other than your primary sector, you must
comply with all other applicable sector-specific conditions found in
Part 6 for the co-located industrial activities. The extra sector-
specific requirements are applied only to those areas of your facility
where the extra-sector activities occur. An activity at a facility is
not considered co-located if the activity, when considered separately,
does not meet the description of a category of industrial activity
covered by the storm water regulations, and identified by today's MSGP
SIC code list. For example, unless you are actually hauling substantial
amounts of freight or materials with your own truck fleet or are
providing a trucking service to outsiders, simple maintenance of
vehicles used at your facility is unlikely to meet the SIC code group
42 description of a motor freight transportation facility. Even though
Sector P may not apply, the runoff from your vehicle maintenance
facility would likely still be considered storm water

[[Page 64761]]

associated with industrial activity. As such, your SWPPP must still
address the runoff from the vehicle maintenance facility--although not
necessarily with the same degree of detail as required by Sector P--but
you would not be required to monitor as per Sector P.
In the event there truly are co-located activities at your
facility, today's MSGP authorizes, as does the 1995 MSGP, all storm
water discharges provided that your facility complies with all SWPPP
and monitoring requirements for each co-located activity. By monitoring
the discharges from the different industrial activities, you can better
determine the effectiveness of your SWPPP for controlling all major
pollutants of concern in your storm water discharges. However, if
monitoring for the same parameter is required for more than one sector
(and the different industrial activities drain to the same outfall),
then only one sample analysis is required for that parameter.
4. Numeric Effluent Limitations
Today's MSGP retains the numeric effluent limitations which were
included in the 1995 MSGP, and also includes the effluent limitations
guidelines which EPA recently finalized for certain storm water
discharges from new and existing hazardous and non-hazardous landfills
(65 FR 3007, January 19, 2000). The new effluent limitations guidelines
for these landfills are discussed in more detail in the Sections VIII.K
and L of this fact sheet (Special Requirements for Discharges
Associated with Industry Activities).
Today's MSGP retains the numeric effluent limitations from the 1995
MSGP for the following discharges: coal pile runoff (including runoff
from steam electric power plants subject to 40 CFR Part 423
requirements), discharges from phosphate fertilizer manufacturing (40
CFR Part 418), asphalt paving and roofing emulsions (40 CFR Part 443),
cement manufacturing materials storage pile runoff (40 CFR Part 411),
and discharges resulting from the spray down of lumber and wood
products storage yards (wet decking) (40 CFR Part 429). In addition,
the final MSGP authorizes mine dewatering discharges from construction
sand and gravel, industrial sand, and crushed stone facilities (40 CFR
Part 436) in EPA Regions 1, 2, 3, 6, 8, 9, 10. The actual numeric
effluent limitations can be found in Part 6 of the final MSGP.
5. Compliance with Water Quality Standards
The 1995 MSGP does not specifically address compliance with water
quality standards (WQS), other than to exclude from coverage discharges
which may contribute to an exceedance of WQS. Today's final MSGP
includes the same restriction on eligibility, and in Part 3.3 also
includes certain requirements if exceedances occur for discharges
covered by the MSGP. If a discharge authorized under the final MSGP is
later discovered to cause, or have the reasonable potential to cause or
contribute to, a violation of a WQS, the permitting authority will
inform the permittee of the violation. The permittee must then take all
necessary actions to ensure future discharges do not cause or
contribute to the violation of WQS, and document these actions in the
SWPPP. If violations remain or recur, coverage under the MSGP may be
terminated by the permitting authority and an alternate permit issued.
Today's final MSGP also clarifies that compliance with this requirement
does not preclude enforcement actions as provided by the CWA for the
underlying violation.

C. Common Storm Water Pollution Prevention Plan (SWPPP) Requirements

Like the 1995 MSGP, today's reissued MSGP requires that all
facilities which intend to be covered by the MSGP for storm water
discharges associated with industrial activity prepare and implement a
SWPPP. The MSGP addresses pollution prevention plan requirements for a
number of categories of industries. Following below is a discussion of
the common permit requirements for all industries; special requirements
for facilities subject to EPCRA Section 313 reporting requirements; and
special requirements for facilities with outdoor salt storage piles.
These are the permit requirements which apply to discharges associated
with any of the industrial activities covered by today's final MSGP.
These common requirements may be amended or further clarified in the
industry-specific SWPPP requirements which are found in Part 6 of the
final MSGP. These industry-specific requirements are additive for
facilities where co-located industrial activities occur.
The Storm Water Pollution Prevention Plan (SWPPP) approach in
today's final MSGP focuses on two major objectives: (1) to identify
sources of pollution potentially affecting the quality of storm water
discharges associated with industrial activity from the facility; and
(2) ensure implementation of measures to minimize and control
pollutants in storm water discharges associated with industrial
activity from the facility.
The SWPPP requirements in today's final MSGP are intended to
facilitate a process whereby the operator of the industrial facility
thoroughly evaluates potential pollution sources at the site and
selects and implements appropriate measures designed to prevent or
control the discharge of pollutants in storm water runoff. The process
involves the following four steps: (1) formation of a team of qualified
plant personnel who will be responsible for preparing the plan and
assisting the plant manager in its implementation; (2) assessment of
potential storm water pollution sources; (3) selection and
implementation of appropriate management practices and controls; and
(4) periodic evaluation of the effectiveness of the plan to prevent
storm water contamination.
EPA believes the pollution prevention approach is the most
environmentally sound and cost-effective way to control the discharge
of pollutants in storm water runoff from industrial facilities. This
position is supported by the results of a comprehensive technical
survey EPA completed in 1979.\3\ The survey found that two classes of
management practices are generally employed at industries to control
the nonroutine discharge of pollutants from sources such as storm water
runoff, drainage from raw material storage and waste disposal areas,
and discharges from places where spills or leaks have occurred. The
first class of management practices includes those that are low in
cost, applicable to a broad class of industries and substances, and
widely considered essential to a good pollution control program. Some
examples of practices in this class are good housekeeping, employee
training, and spill response and prevention procedures. The second
class includes management practices that provide a second line of
defense against the release of pollutants. This class addresses
containment, mitigation, and cleanup. Since publication of the 1979
survey, EPA has imposed management practices and controls in NPDES
permits on a case-by-case basis. The Agency also has continued to
review the appropriateness and effectiveness of such practices,\4\ as
well as the

[[Page 64762]]

techniques used to prevent and contain oil spills. \5\ Experience with
these practices and controls has shown that they can be used in permits
to reduce pollutants in storm water discharges in a cost-effective
manner. In keeping with both the present and previous administration's
objective to attain environmental goals through pollution prevention,
pollution prevention has been and continues to be the cornerstone of
the NPDES permitting program for storm water. EPA has developed
guidance entitled ``Storm Water Management for Industrial Activities:
Developing Pollution Prevention Plans and Best Management Practices,''
September 1992, to assist permittees in developing and implementing
pollution prevention measures.
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\3\ See ``Storm Water Management for Industrial Activities,''
EPA, September 1992, EPA-832-R-92-006.
\4\ For example, see ``Best Management Practices: Useful Tools
for Cleaning Up,'' Thron, H. Rogoshewski, P., 1982, Proceedings of
the 1982 Hazardous Material Spills Conference; ``The Chemical
Industries'' Approach to Spill Prevention,'' Thompson, C., Goodier,
J. 1980, Proceedings of the 1980 National Conference of Control of
Hazardous Materials Spills; a series of EPA memoranda entitled
``Best Management Practices in NPDES Permits--Information
Memorandum,'' 1983, 1985, 1986, 1987, 1988; Review of Emergency
Systems: Report to Congress,'' EPA, 1988; and ``Analysis of
Implementing Permitting Activities for Storm Water Discharges
Associated with Industrial Activity,'' EPA, 1991.
\5\ See for example, ``The Oil Spill Prevention, Control and
Countermeasures Program Task Force Report,'' EPA, 1988; and
``Guidance Manual for the Development of an Accidental Spill
Prevention Program,'' prepared by SAIC for EPA, 1986.

Note: The discussions of the SWPPP requirements are grouped in
subject areas and do not follow the exact order of the permit
---------------------------------------------------------------------------
conditions.

1. Pollution Prevention Team (Part 4.2.1)
As a first step in the process of developing and implementing a
SWPPP, permittees are required to identify a qualified individual or
team of individuals to be responsible for developing the plan and
assisting the facility or plant manager in its implementation. When
selecting members of the team, the plant manager should draw on the
expertise of all relevant departments within the plant to ensure that
all aspects of plant operations are considered when the plan is
developed. The plan must clearly describe the responsibilities of each
team member as they relate to specific components of the plan. In
addition to enhancing the quality of communication between team members
and other personnel, clear delineation of responsibilities will ensure
that every aspect of the plan is addressed by a specified individual or
group of individuals. Pollution Prevention Teams may consist of one
individual where appropriate (e.g., in certain small businesses with
limited storm water pollution potential).
2. Description of the Facility and Potential Pollution Sources (Part
4.2.2)
Each SWPPP must describe activities, materials, and physical
features of the facility that may contribute significant amounts of
pollutants to storm water runoff or, during periods of dry weather,
result in pollutant discharges through the separate storm sewers or
storm water drainage systems that drain the facility. This assessment
of storm water pollution risk will support subsequent efforts to
identify and set priorities for necessary changes in materials,
materials management practices, or site features, as well as aid in the
selection of appropriate structural and nonstructural control
techniques. Some operators may find that significant amounts of
pollutants are running onto the facility property. Such operators
should identify and address the contaminated runon in the SWPPP. If the
runon cannot be addressed or diverted by the permittee, the permitting
authority should be notified. If necessary, the permitting authority
may require the operator of the adjacent facility to obtain a permit.
Part 6 of the final MSGP includes industry-specific requirements
for the various industry sectors covered by today's permit. All SWPPPs
generally must describe the following elements:
a. Description of the Facility Site and Receiving Waters/Wetlands
(Parts 4.2.2 and 4.2.3): The plan must contain a map of the site that
shows the location of outfalls covered by the permit (or by other NPDES
permits), the pattern of storm water drainage, an indication of the
types of discharges contained in the drainage areas of the outfalls,
structural features that control pollutants in runoff,\6\ surface water
bodies (including wetlands), places where significant materials \7\ are
exposed to rainfall and runoff, and locations of major spills and leaks
that occurred in the 3 years prior to the date of the submission of an
NOI to be covered under this permit. The map also must show areas where
the following activities take place: fueling, vehicle and equipment
maintenance and/or cleaning, loading and unloading, material storage
(including tanks or other vessels used for liquid or waste storage),
material processing, and waste disposal. For areas of the facility that
generate storm water discharges with a reasonable potential to contain
significant amounts of pollutants, the map must indicate the probable
direction of storm water flow and the pollutants likely to be in the
discharge. Flows with a significant potential to cause soil erosion
also must be identified. In order to increase the readability of the
map, the inventory of the types of discharges contained in each outfall
may be kept as an attachment to the site map.
---------------------------------------------------------------------------

\6\ Nonstructural features such as grass swales and vegetative
buffer strips also should be shown.
\7\ Significant materials include, but are not limited to the
following: raw materials; fuels; solvents, detergents, and plastic
pellets; finished materials, such as metallic products; raw
materials used in food processing or production; hazardous
substances designated under Section 101(14) of the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA); any
chemical the facility is required to report pursuant to EPCRA
Section 313; fertilizers; pesticides; and waste products, such as
ashes, slag, and sludge that have the potential to be released with
storm water discharges. (See 40 CFR 122.26(b)(8)).
---------------------------------------------------------------------------

b. Summary of Potential Pollutant Sources (Part 4.2.4): The
description of potential pollution sources culminates in a narrative
assessment of the risk potential that sources of pollution pose to
storm water quality. This assessment should clearly point to
activities, materials, and physical features of the facility that have
a reasonable potential to contribute significant amounts of pollutants
to storm water. Any such activities, materials, or features must be
addressed by the measures and controls subsequently described in the
plan. In conducting the assessment, the facility operator must consider
the following activities: loading and unloading operations; outdoor
storage activities; outdoor manufacturing or processing activities;
significant dust or particulate generating processes; and onsite waste
disposal practices. The assessment must list any significant pollution
sources at the site and identify the pollutant parameter or parameters
(i.e., biochemical oxygen demand, suspended solids, etc.) associated
with each source.
c. Significant Spills and Leaks (Part 4.2.5): The plan must include
a list of any significant spills and leaks of toxic or hazardous
pollutants that occurred in the three years prior to the date of the
submission of an NOI to be covered under this permit. Significant
spills include, but are not limited to, releases of oil or hazardous
substances in excess of quantities that are reportable under Section
311 of CWA (see 40 CFR 110.10 and 40 CFR 117.21) or Section 102 of the
Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA) (see 40 CFR 302.4). Significant spills may also include
releases of oil or hazardous substances that are not in excess of
reporting requirements and releases of materials that are not
classified as oil or a hazardous substance.
The listing should include a description of the causes of each
spill or leak, the actions taken to respond to each release, and the
actions taken to prevent similar such spills or leaks in the future.
This effort will aid the facility operator as she or he examines
existing spill prevention and response procedures and develops any
additional

[[Page 64763]]

procedures necessary to fulfill the requirements set forth in Parts 4
and 6 of the final permit.
d. Allowable and Prohibited Non-storm Water Discharges (Part 4.4):
Each SWPPP must include a certification, signed by an authorized
individual, that discharges from the site have been tested or evaluated
for the presence of non-storm water discharges. The certification must
describe possible significant sources of non-storm water, the results
of any test and/or evaluation conducted to detect such discharges, the
test method or evaluation criteria used, the dates on which tests or
evaluations were performed, and the onsite drainage points directly
observed during the test or evaluation. Acceptable test or evaluation
techniques include dye tests, television surveillance, observation of
outfalls or other appropriate locations during dry weather, water
balance calculations, and analysis of piping and drainage schematics.\8\
---------------------------------------------------------------------------

\8\ In general, smoke tests should not be used for evaluating
the discharge of non-storm water to a separate storm sewer as many
sources of non-storm water typically pass through a trap that would
limit the effectiveness of the smoke test.
---------------------------------------------------------------------------

Except for flows that originate from fire fighting activities,
sources of non-storm water that are specifically identified in the
permit as being eligible for authorization under the general permit
must be identified in the plan. SWPPPs must identify and ensure the
implementation of appropriate pollution prevention measures for the
non-storm water discharge.
EPA recognizes that certification may not be feasible where
facility personnel do not have access to an outfall, manhole, or other
point of access to the conduit that ultimately receives the discharge.
In such cases, the plan must describe why certification was not
feasible. Permittees who are not able to certify that discharges have
been tested or evaluated must notify the Director in accordance with
Part 4.4 of the final MSGP.
e. Sampling Data (Part 4.2.6): Any existing data on the quality or
quantity of storm water discharges from the facility must be described
in the plan, including data collected for Part 2 of the group
application process. These data may be useful for locating areas that
have contributed pollutants to storm water. The description should
include a discussion of the methods used to collect and analyze the
data. Sample collection points should be identified in the plan and
shown on the site map.
3. Selection and Implementation of Storm Water Controls (Part 4.2.7, et
al.)
Following completion of the source identification and assessment
phase, the permit requires the permittee to evaluate, select, and
describe the pollution prevention measures, BMPs, and other controls
that will be implemented at the facility. BMPs include processes,
procedures, schedules of activities, prohibitions on practices, and
other management practices that prevent or reduce the discharge of
pollutants in storm water runoff.
EPA emphasizes the implementation of pollution prevention measures
and BMPs that reduce possible pollutant discharges at the source.
Source reduction measures include, among others, preventive
maintenance, chemical substitution, spill prevention, good
housekeeping, training, and proper materials management. Where such
practices are not appropriate to a particular source or do not
effectively reduce pollutant discharges, EPA supports the use of source
control measures and BMPs such as material segregation or covering,
water diversion, and dust control. Like source reduction measures,
source control measures and BMPs are intended to keep pollutants out of
storm water. The remaining classes of BMPs, which involve recycling or
treatment of storm water, allow the reuse of storm water or attempt to
lower pollutant concentrations prior to discharge.
The SWPPP must discuss the reasons each selected control or
practice is appropriate for the facility and how each will address one
or more of the potential pollution sources identified in the plan. The
plan also must include a schedule specifying the time or times during
which each control or practice will be implemented. In addition, the
plan should discuss ways in which the controls and practices relate to
one another and, when taken as a whole, produce an integrated and
consistent approach for preventing or controlling potential storm water
contamination problems. The permit requirements included for the
various industry sectors in Part 6 of today's final MSGP generally
require that the portion of the plan that describes the measures and
controls address the following minimum components.
When ``minimize/reduce'' is used relative to SWPPP measures, EPA
means to consider and implement BMPs that will result in an improvement
over the baseline conditions as it relates to the levels of pollutants
identified in storm water discharges with due consideration to economic
feasibility and effectiveness.
a. Nonstructural Controls:
Good Housekeeping. Good housekeeping involves using
practical, cost-effective methods to identify ways to maintain a clean
and orderly facility and keep contaminants out of separate storm
sewers. It includes establishing protocols to reduce the possibility of
mishandling chemicals or equipment and training employees in good
housekeeping techniques. These protocols must be described in the plan
and communicated to appropriate plant personnel.
Minimizing Exposure. Where practicable, protecting
potential pollutant sources from exposure to storm water is an
important control option. Pollutants that are never allowed to
contaminate storm water do not require development of ``treatment''
type BMPs. Elimination of all exposure to storm water may also make the
facility eligible for the ``No Exposure Certification'' exclusion from
permitting at 40 CFR 122.26(g)
Preventive Maintenance. Permittees must develop a
preventive maintenance program that involves regular inspection and
maintenance of storm water management devices and other equipment and
systems. The program description should identify the devices,
equipment, and systems that will be inspected; provide a schedule for
inspections and tests; and address appropriate adjustment, cleaning,
repair, or replacement of devices, equipment, and systems. For storm
water management devices such as catch basins and oil/water separators,
the preventive maintenance program should provide for periodic removal
of debris to ensure that the devices are operating efficiently. For
other equipment and systems, the program should reveal and enable the
correction of conditions that could cause breakdowns or failures that
may result in the release of pollutants.
Spill Prevention and Response Procedures. Based on an
assessment of possible spill scenarios, permittees must specify
appropriate material handling procedures, storage requirements,
containment or diversion equipment, and spill cleanup procedures that
will minimize the potential for spills and, in the event of a spill,
enable proper and timely response. Areas and activities that typically
pose a high risk for spills include loading and unloading areas,
storage areas, process activities, and waste disposal activities. These
activities and areas, and their accompanying drainage points, must be
described in the plan. For a spill

[[Page 64764]]

prevention and response program to be effective, employees should
clearly understand the proper procedures and requirements and have the
equipment necessary to respond to spills.
Routine Inspections. In addition to the comprehensive site
evaluation, facilities are required to conduct periodic inspections of
designated equipment and areas of the facility. Industry-specific
requirements for such inspections, if any, are set forth in Part 6 of
the final MSGP. When required, qualified personnel must be identified
to conduct inspections at appropriate intervals specified in the plan.
A set of tracking or follow-up procedures must be used to ensure that
appropriate actions are taken in response to the inspections. Records
of inspections must be maintained. These periodic inspections are
different from the comprehensive site evaluation, even though the
former may be incorporated into the latter. Equipment, area, or other
inspections are typically visual and are normally conducted on a
regular basis, e.g., daily inspections of loading areas. Requirements
for such periodic inspections are specific to each industrial sector in
today's permit, whereas the comprehensive site compliance evaluation is
required of all industrial sectors. Area inspections help ensure that
storm water pollution prevention measures (e.g., BMPs) are operating
and properly maintained on a regular basis. The comprehensive site
evaluation is intended to provide an overview of the entire facility's
pollution prevention activities. Refer to Part VI.C.3.h. below for more
information on the comprehensive site evaluation.
Employee Training. The SWPPP must describe a program for
informing personnel at all levels of responsibility of the components
and goals of the SWPPP. The training program should address topics such
as good housekeeping, materials management, and spill response
procedures. Where appropriate, contractor personnel also must be
trained in relevant aspects of storm water pollution prevention. A
schedule for conducting training must be provided in the plan. Several
sections in Part 6 of today's final MSGP specify a minimum frequency
for training of once per year. Others indicate that training is to be
conducted at an appropriate interval. EPA recommends that facilities
conduct training annually at a minimum. However, more frequent training
may be necessary at facilities with high turnover of employees or where
employee participation is essential to the storm water pollution
prevention plan.
b. Structural Controls:
Sediment and Erosion Control. The SWPPP must identify
areas that, due to topography, activities, soils, cover materials, or
other factors have a high potential for significant soil erosion. The
plan must identify measures that will be implemented to limit erosion
in these areas.
Management of Runoff. The plan must contain a narrative
evaluation of the appropriateness of traditional storm water management
practices (i.e., practices other than those that control pollutant
sources) that divert, infiltrate, reuse, or otherwise manage storm
water runoff so as to reduce the discharge of pollutants. Appropriate
measures may include, among others, vegetative swales, collection and
reuse of storm water, inlet controls, snow management, infiltration
devices, and wet detention/retention basins.
c. Example BMPs: Part 4.2.7.2.2 includes a list of example BMPs
that could be considered for use in a SWPPP, for example: detention
structures (including wet ponds); storm water retention structures;
flow attenuation by use of open vegetated swales and natural
depressions; infiltration of runoff onsite; and sequential systems
(which combine several practices). These examples are not intended to
limit the creativity of facility operators in developing alternative
BMPs or applications for BMPs that increase cost effectiveness.
d. Selection of Controls: Based on the results of the evaluation,
the plan must identify practices that the permittee determines are
reasonable and appropriate for the facility. The plan also should
describe the particular pollutant source area or activity to be
controlled by each storm water management practice. Reasonable and
appropriate practices must be implemented and maintained according to
the provisions prescribed in the plan.
In selecting storm water management measures, it is important to
consider the potential effects of each method on other water resources,
such as ground water. Although storm water pollution prevention plans
primarily focus on storm water management, facilities must also
consider potential ground water pollution problems and take appropriate
steps to avoid adversely affecting ground water quality. For example,
if the water table is unusually high in an area, an infiltration pond
may contaminate a ground water source unless special preventive
measures are taken. Under EPA's July 1991 Ground Water Protection
Strategy, States are encouraged to develop Comprehensive State Ground
Water Protection Programs (CSGWPP). Efforts to control storm water
should be compatible with State ground water objectives as reflected in
CSGWPPs.
e. Other Controls: Today's final MSGP includes a new requirement
that no solid materials, including floating debris may be discharged to
waters of the United States, except as authorized by a permit under
Section 404 of the Clean Water Act. In addition, off-site tracking of
raw, final, or waste materials or sediment, and the generation of dust
must be minimized. Tracking or blowing of raw, final, or waste
materials from areas of no exposure to exposed areas must be minimized.
These requirements are similar to requirements included in EPA's
construction general storm water permit (63 FR 7858, February 17, 1998)
which EPA believes would be appropriate for industrial facilities as well.
f. Maintenance (Part 4.3): All BMPs identified in the SWPPP must be
maintained in effective operating condition.
g. Controls for Allowable Non-Storm Water (Part 4.4.2): Where an
allowable non-storm water has been identified, appropriate controls for
that discharge must be included in the permit. In many cases, the same
types of controls for contaminated storm water would suffice, but the
nature and volume of potential pollutants in the non-storm water
discharges must be taken into consideration in selection of controls.
h. Comprehensive Site Compliance Evaluation (Part 4.9): Today's
final MSGP requires that the SWPPP describe the scope and content of
the comprehensive site evaluations that qualified personnel will
conduct to (1) confirm the accuracy of the description of potential
pollution sources contained in the plan, (2) determine the
effectiveness of the plan, and (3) assess compliance with the terms and
conditions of the permit. Note that the comprehensive site evaluations
are not the same as periodic or other inspections described for certain
industries in Section VI.C.3.d of this fact sheet. However, in the
instances when frequencies of inspections and the comprehensive site
compliance evaluation overlap, they may be combined allowing for
efficiency as long as the requirements for both types of inspections
are met. The plan must indicate the frequency of comprehensive
evaluations which must be at least once a year, except where
comprehensive site evaluations are shown in the plan to be impractical
for inactive mining sites, due to remote

[[Page 64765]]

location and inaccessibility.\9\ The individual or individuals who will
conduct the comprehensive site evaluation must be identified in the
plan and should be members of the pollution prevention team. Material
handling and storage areas and other potential sources of pollution
must be visually inspected for evidence of actual or potential
pollutant discharges to the drainage system. Inspectors also must
observe erosion controls and structural storm water management devices
to ensure that each is operating correctly. Equipment needed to
implement the SWPPP, such as that used during spill response activities,
must be inspected to confirm that it is in proper working order.
---------------------------------------------------------------------------

\9\ Where annual site inspections are shown in the plan to be
impractical for inactive mining sites due to remote location and
inaccessibility, site inspections must be conducted at least once
every three years.
---------------------------------------------------------------------------

The results of each comprehensive site evaluation must be
documented in a report signed by an authorized company official. The
report must describe the scope of the comprehensive site evaluation,
the personnel making the comprehensive site evaluation, the date(s) of
the comprehensive site evaluation, and any major observations relating
to implementation of the SWPPP. Comprehensive site evaluation reports
must be retained for at least three years after the date of the
evaluation. Based on the results of each comprehensive site evaluation,
the description in the plan of potential pollution sources and measures
and controls must be revised as appropriate within two weeks after each
comprehensive site evaluation, unless indicated otherwise in Part 6 of
the permit. If existing BMPs need to be modified or if additional BMPs
are necessary, implementation must be completed before the next
anticipated storm, or not more than 12 weeks after completion of the
comprehensive site evaluation.
i. Applicable State, Tribal, or Local Plans (Part 4.8): The SWPPP
must be consistent with any applicable requirements of State, Tribal,
or Local storm water, waste disposal, sanitary sewer or septic system
regulations to the extent these apply to a facility and are more
stringent than the requirements of this permit.
j. Documentation of Permit Eligibility with Regards to ESA and NHPA
Requirements (Parts 4.5 and 4.6): To better ensure compliance with the
requirements of the ESA and NHPA, Parts 4.5 and 4.6 of today's final
MSGP require that documentation be included with the SWPPP
demonstrating permit eligibility with regards to the requirements of
the ESA and NHPA. The following information is required for the ESA:
Information on whether listed endangered or threatened
species, or critical habitat, are found in proximity to the facility;
Whether such species may be jeopardized by the storm water
discharges or storm water discharge-related activities;
Results of the Addendum A endangered species screening
determinations; and
A description of measures necessary to protect listed
endangered or threatened species, or critical habitat, including any
terms or conditions that are imposed under the eligibility requirements
of Part 1.2.3.6. The final MSGP notes that discharges from facilities
which fail to describe and implement such measures are ineligible for
coverage under the permit.
The following information is required for the NHPA determination:
Information on whether the storm water discharges or storm
water discharge-related activities would have an effect on a property
that is listed or eligible for listing on the National Register of
Historic Places;
Where effects may occur, any written agreements which have
been made with the State Historic Preservation Officer, Tribal Historic
Preservation Officer, or other Tribal leader to mitigate those effects;
Results of the Addendum B historic places screening determinations; and
A description of measures necessary to avoid or minimize
adverse impacts on places listed, or eligible for listing, on the
National Register of Historic Places, including any terms or conditions
that are imposed under the eligibility requirements of Part 1.2.3.7 of
this permit. The final MSGP notes that discharges from facilities which
fail to describe and implement such measures are ineligible for
coverage under the permit.
k. Keeping a Copy of the Permit with the SWPPP (Part 4.7): A new
requirement to have a copy of the permit language in the SWPPP has been
added to today's permit. The ``confirmation'' letter received from the
NOI Processing Center is not the permit; it is essentially only the
equivalent of a ``receipt'' for a facility's ``registration'' (NOI) to
use the general permit. Since determining permit eligibility and
preparing a SWPPP is required prior to obtaining permit coverage, a
copy of the permit would be needed anyway. Requiring a copy of the
permit in the SWPPP ensures that facility operators, and not just whoever
prepared the SWPPP, will have ready access to all permit requirements.
l. Recordkeeping and Keeping the SWPPP Current (Parts 4.9.4, 4.10,
et al.): Records must be kept with the SWPPP documenting the status and
effectiveness of plan implementation. At a minimum, records must
address results of the annual Comprehensive Site Compliance
Evaluations, routine facility inspections, spills, monitoring, and
maintenance activities. The plan also must describe a system that
enables timely reporting of storm water management-related information
to appropriate plant personnel. Inspectors or other enforcement
officers will ask for records documenting permit compliance during
inspections or facility compliance reviews.
The SWPPP must be updated whenever there is a change at the
facility that would significantly affect the discharges authorized
under the MSGP. The SWPPP must also be updated whenever monitoring
results and/or an inspection by the permittee or by local, state,
tribal, or federal officials indicate a portion of the SWPPP is proving
to be ineffective in controlling storm water discharge quality.
m. Signature, Plan Review, and Access to the SWPPP (Part 4.11): The
SWPPP must be signed and certified in accordance with Part 7 of the
permit. A copy of the SWPPP must be kept on site at the facility or be
locally available for the use of the Director, a State, Tribe, or local
agency (e.g., MS4 operator) at the time of an onsite inspection. The
SWPPP must also be made available to the U.S. Fish and Wildlife Service
or National Marine Fisheries Service upon request. Since SWPPPs are
living documents that change over time, access to the current version
of the SWPPP is critical in assessing permit compliance. Facilities are
also required to provide a copy of the SWPPP to the public when
requested in writing to do so.
The Director may notify you at any time that your SWPPP does not
meet one or more of the minimum requirements of this permit. The
notification will identify provisions of the permit which are not being
met, as well as the required modifications. Required changes must be
made within thirty (30) calendar days and a written certification
submitted to the Director confirming that the changes were made.
EPA does not intend to require public comment on SWPPPs or hold
public hearings. As noted above, EPA may require changes to a SWPPP
when necessary and may consider concerns from the public in making such
judgments. The MSGP also provides

[[Page 64766]]

that individual permits may be required when the MSGP is inappropriate
for a given facility. During the issuance of the individual permits,
the public would have an opportunity to comment on the requirements of
the permits.
4. Deadlines
Today's MSGP requires that permittees previously covered by the
1995 MSGP must update their SWPPPs to comply with any new requirements
of today's MSGP by the date they submit their new NOIs. As noted
earlier, the new NOIs are due January 29, 2001. However, a permittee
may request an extension for the SWPPP update not to exceed 270 days
from the expiration date of the 1995 MSGP.

D. Special Requirements

1. Special Requirements for Storm Water Discharges Associated With
Industrial Activity From Facilities Subject to EPCRA Section 313
Requirements (Part 4.12)
Today's final MSGP replaces the special requirements of the 1995
MSGP for certain permittees subject to reporting requirements under
Section 313 of the EPCRA (also known as Title III of the Superfund
Amendments and Reauthorization Act (SARA)) with a requirement to
identify areas with these pollutants. EPCRA Section 313 requires
operators of certain facilities that manufacture (including import),
process, or otherwise use listed toxic chemicals to report annually
their releases of those chemicals to any environmental media. Listed
toxic chemicals include more than 500 chemicals and chemical classes
listed at 40 CFR Part 372 (including the recently added chemicals
published November 30, 1994).
By requiring identification of EPCRA 313 chemicals in the summary
of potential pollutant sources under the Storm Water Pollution
Prevention Plan (Part 4.2.4), the facility operator is then required to
develop appropriate storm water controls for such areas (Part 4.2.7).
EPA expects that many controls for EPCRA chemicals will continue to be
driven by other state and federal environmental regulations such as
Spill Prevention Control and Countermeasure (SPCC) plans required under
Section 311 of the CWA, etc. as long as such a requirement is
incorporated into the SWPPP.
This reduction in permit complexity by eliminating redundant
requirements was requested by members of the regulated community.
2. Special Requirements for Storm Water Discharges Associated With
Industrial Activity From Salt Storage Facilities
Today's MSGP retains the same special requirements as the 1995 MSGP
for storm water discharges associated with industrial activity from
salt storage facilities. Storage piles of salt used for deicing or
other commercial or industrial purposes must be enclosed or covered to
prevent exposure to precipitation, except for exposure resulting from
adding or removing materials from the pile. This requirement only
applies to runoff from storage piles discharged to waters of the United
States. Facilities that collect all the runoff from their salt piles
and reuse it in their processes or discharge it subject to a separate
NPDES permit do not need to enclose or cover their piles.
These special requirements have been included in today's permit
based on human health and aquatic effects resulting from storm water
runoff from salt storage piles compounded with the prevalence of salt
storage piles across the United States.
3. Consistency With Other Plans
SWPPPs may reference the existence of other plans for Spill
Prevention Control and Countermeasure (SPCC) developed for the facility
under Section 311 of the CWA or BMP programs otherwise required by an
NPDES permit for the facility as long as such requirement is
incorporated into the SWPPP.

E. Monitoring and Reporting Requirements

Today's final MSGP retains the same monitoring requirements as the
existing MSGP. Numerous comments were submitted on these monitoring
requirements. A summary of EPA's responses to these comments and
justification for retaining these requirements is contained in this
section. A more detailed discussion is found in Section IX of this fact
sheet (Summary of Responses to Comments). Responses to individual
comments are contained in the Water Docket.
Like the 1995 MSGP, today's final MSGP includes three general types
of monitoring: analytical monitoring or chemical monitoring; compliance
monitoring for effluent guidelines compliance, and visual examinations
of storm water discharges. A general description of each of these types
of monitoring which was provided with the 1995 MSGP is repeated below.
1. Analytical Monitoring Requirements
Analytical monitoring requirements involve laboratory chemical
analyses of samples collected by the permittee. The results of the
analytical monitoring are quantitative concentration values for
different pollutants, which can be easily compared to the results from
other sampling events, other facilities, or to national benchmarks.
The categories of facilities subject to analytical monitoring in
today's final MSGP are noted in Table 1 of this fact sheet. The MSGP
requires analytical monitoring for the industry sectors or subsectors
that demonstrated in the group application data a potential to
discharge pollutants at concentrations of concern or, in certain State-
specific cases, to satisfy those States' requirements. The data
submitted with the group permit applications were reviewed by EPA to
determine the industry sectors and subsectors listed in Table 1 of this
fact sheet that are to be subject to analytical monitoring
requirements. First, EPA divided the Part 1 and Part 2 application data
by the industry sectors listed in Table 1. Where a sector was found to
contain a wide range of industrial activities or potential pollutant
sources, it was further subdivided into the industry subsectors listed
in Table 1. Next, EPA reviewed the information submitted in Part 1 of
the group applications regarding the industrial activities, significant
materials exposed to storm water, and the material management measures
employed. This information helped identify potential pollutants that
may be present in the storm water discharges. Then EPA entered into a
database the sampling data submitted in Part 2 of the group
applications. Those data were arrayed according to industrial sector
and subsector for the purposes of determining when analytical
monitoring would be appropriate.
To conduct a comparison of the results of the statistical analyses
to determine when analytical monitoring would be required, EPA
established ``benchmark'' concentrations for the pollutant parameters
on which monitoring results had been received. The ``benchmarks'' are
the pollutant concentrations above which EPA determined represent a
level of concern. The level of concern is a concentration at which a
storm water discharge could potentially impair, or contribute to
impairing, water quality or affect human health from ingestion of water
or fish. The benchmarks are also viewed by EPA as a level that, if
below, a facility presents little potential for water quality concern.
As such, the benchmarks also

[[Page 64767]]

provide an appropriate level to determine whether a facility's storm
water pollution prevention measures are successfully implemented. The
benchmark concentrations are not effluent limitations and should not be
interpreted or adopted as such. These values are merely levels which
EPA has used to determine if a storm water discharge from any given
facility merits further monitoring to ensure that the facility has been
successful in implementing a SWPPP. As such, these levels represent a
target concentration for a facility to achieve through implementation
of pollution prevention measures at the facility. Table 3 lists the
parameter benchmark values and the sources used for the benchmarks. Two
changes from the 1995 MSGP are the addition of benchmark values for
total Cyanide and Total Magnesium. Benchmark values for the two
parameters were included in the Fact Sheet of the 1995 MSGP at Table K-
3, but were inadvertently not included in the general listing of
parameter benchmark values (Table 5 of the Fact Sheet for the 1995
MSGP). Additional information explaining the derivation of the
benchmarks can be found in the fact sheet for the 1995 MSGP (60 FR 50825).

Table 3.--Parameter Benchmark Values
------------------------------------------------------------------------
Parameter name Benchmark level Source
------------------------------------------------------------------------
Biochemical Oxygen Demand (5 day).... 30 mg/L.............. 4
Chemical Oxygen Demand............... 120 mg/L............. 5
Total Suspended Solids............... 100 mg/L............. 7
Oil and Grease....................... 15 mg/L.............. 8
Nitrate + Nitrite Nitrogen........... 0.68 mg/L............ 7
Total Phosphorus..................... 2.0 mg/L............. 6
pH................................... 6.0-9.0 s.u.......... 4
Acrylonitrile (c).................... 7.55 mg/L............ 2
Aluminum, Total (pH 6.5-9)........... 0.75 mg/L............ 1
Ammonia.............................. 19 mg/L.............. 1
Antimony, Total...................... 0.636 mg/L........... 9
Arsenic, Total (c)................... 0.16854 mg/L......... 9
Benzene.............................. 0.01 mg/L............ 10
Beryllium, Total (c)................. 0.13 mg/L............ 2
Butylbenzyl Phthalate................ 3 mg/L............... 3
Cadmium, Total (H)................... 0.0159 mg/L.......... 9
Chloride............................. 860 mg/L............. 1
Copper, Total (H).................... 0.0636 mg/L.......... 9
Cyanide, Total....................... 0.0636 mg/l.......... 9
Dimethyl Phthalate................... 1.0 mg/L............. 11
Ethylbenzene......................... 3.1 mg/L............. 3
Fluoranthene......................... 0.042 mg/L........... 3
Fluoride............................. 1.8 mg/L............. 6
Iron, Total.......................... 1.0 mg/L............. 12
Lead, Total (H)...................... 0.0816 mg/L.......... 1
Magnesium, Total..................... 0.0636 mg/l.......... 9
Manganese............................ 1.0 mg/L............. 13
Mercury, Total....................... 0.0024 mg/L.......... 1
Nickel, Total (H).................... 1.417 mg/L........... 1
PCB-1016 (c)......................... 0.000127 mg/L........ 9
PCB-1221 (c)......................... 0.10 mg/L............ 10
PCB-1232 (c)......................... 0.000318 mg/L........ 9
PCB-1242 (c)......................... 0.00020 mg/L......... 10
PCB-1248 (c)......................... 0.002544 mg/L........ 9
PCB-1254 (c)......................... 0.10 mg/L............ 10
PCB-1260 (c)......................... 0.000477 mg/L........ 9
Phenols, Total....................... 1.0 mg/L............. 11
Pyrene (PAH,c)....................... 0.01 mg/L............ 10
Selenium, Total (*).................. 0.2385 mg/L.......... 9
Silver, Total (H).................... 0.0318 mg/L.......... 9
Toluene.............................. 10.0 mg/L............ 3
Trichloroethylene (c)................ 0.0027 mg/L.......... 3
Zinc, Total (H)...................... 0.117 mg/L........... 1
------------------------------------------------------------------------
Sources:
1. ``EPA Recommended Ambient Water Quality Criteria.'' Acute Aquatic
Life Freshwater.
2. ``EPA Recommended Ambient Water Quality Criteria.'' LOEL Acute
Freshwater.
3. ``EPA Recommended Ambient Water Quality Criteria.'' Human Health
Criteria for Consumption of Water and Organisms.
4. Secondary Treatment Regulations (40 CFR 133).
5. Factor of 4 times BOD5 concentration--North Carolina benchmark.
6. North Carolina storm water benchmark derived from NC Water Quality
Standards.
7. National Urban Runoff Program (NURP) median concentration.
8. Median concentration of Storm Water Effluent Limitation Guideline
(40 CFR Part 419).
9. Minimum Level (ML) based upon highest Method Detection Limit (MDL)
times a factor of 3.18.
10. Laboratory derived Minimum Level (ML).
11. Discharge limitations and compliance data.
12. ``EPA Recommended Ambient Water Quality Criteria.'' Chronic Aquatic
Life Freshwater.
13. Colorado--Chronic Aquatic Life Freshwater--Water Quality Criteria.
Notes:
(*) Limit established for oil and gas exploration and production
facilities only.
(c) carcinogen.

[[Page 64768]]

(H) hardness dependent.
(PAH) Polynuclear Aromatic Hydrocarbon.
Assumptions:
Receiving water temperature -20 C.
Receiving water pH -7.8.
Receiving water hardness CaCO3 100 mg/L.
Receiving water salinity 20 g/kg
Acute to Chronic Ratio (ACR) -10.

EPA prepared a statistical analysis of the sampling data for each
pollutant parameter reported within each sector or subsector. (Only
where EPA did not subdivide an industry sector into subsectors was an
analysis of the entire sector's data performed.) The statistical
analysis was performed assuming a delta log normal distribution of the
sampling data within each sector/subsector. The analyses calculated
median, mean, maximum, minimum, 95th, and 99th percentile
concentrations for each parameter. The results of the analyses can be
found in the appropriate section of Section VIII of the fact sheet
accompanying the 1995 MSGP. From this analysis, EPA was able to identify
pollutants for further evaluation within each sector or subsector.
EPA next compared the median concentration of each pollutant for
each sector or subsector to the benchmark concentrations listed in
Table 3. EPA also compared the other statistical results to the
benchmarks to better ascertain the magnitude and range of the discharge
concentrations to help identify the pollutants of concern. EPA did not
conduct this analysis if a sector had data for a pollutant from less
than three individual facilities. Under these circumstances, the sector
or subsector would not have this pollutant identified as a pollutant of
concern. This was done to ensure that a reasonable number of facilities
represented the industry sector or subsector as a whole and that the
analysis did not rely on data from only one facility.
For each industry sector or subsector, parameters with a median
concentration higher than the benchmark level were considered
pollutants of concern for the industry and identified as potential
pollutants for analytical monitoring under today's permit. EPA then
analyzed the list of potential pollutants to be monitored against the
lists of significant materials exposed and industrial activities which
occur within each industry sector or subsector as described in the Part
I application information. Where EPA could identify a source of a
potential pollutant which is directly related to industrial activities
of the industry sector or subsector, the permit identifies that
parameter for analytical monitoring. If EPA could not identify a source
of a potential pollutant which was associated with the sector/
subsector's industrial activity, the permit does not require monitoring
for the pollutant in that sector/subsector. Industries with no
pollutants for which the median concentrations are higher than the
benchmark levels are not required to perform analytical monitoring
under this permit, with the exceptions explained below.
In addition to the sectors and subsectors identified for analytical
monitoring using the methods described above, EPA determined, based
upon a review of the degree of exposure, types of materials exposed,
special studies and in some cases inadequate sampling data in the group
applications, that the following industries also warrant analytical
monitoring notwithstanding the absence of data on the presence or
absence of certain pollutants in the group applications: Sector K
(hazardous waste treatment storage and disposal facilities), and Sector
S (airports which use more than 100,000 gallons per year of glycol-
based fluids or 100 tons of urea for deicing). Today's final MSGP
retains the monitoring requirements of the 1995 MSGP due to the high
potential for contamination of storm water discharge which EPA believes
was not adequately characterized by group applicants in the information
they provided in the group application process. Like the 1995 MSGP,
exemptions for today's MSGP would be on a pollutant-by-pollutant and
outfall-by-outfall basis.
As part of the reissuance process for today's MSGP, EPA evaluated
Discharge Monitoring Reports (DMRs) submitted by facilities for
analytical monitoring conducted during the second and fourth year of
the 1995 MSGP. The purpose of the evaluation was to evaluate any trends
in the monitoring results. One factor common to almost all industrial
sectors, however, was that the number of DMRs submitted for the year-
four monitoring period far exceeded the number of DMRs submitted for
the year-two monitoring period. For the second-year monitoring period,
EPA received 380 DMRs, whereas 1377 DMRs were received for the fourth-
year monitoring period. For example, the number of Sector M (Auto
Salvage Yards) facilities that submitted monitoring results for total
suspended solids from the second year monitoring period was roughly 26;
the number of DMRs submitted for the fourth year monitoring for the
same industrial sector and parameter was 240. As a result, EPA could
not conduct the trends analysis it intended to perform.
While the exact reason for the significant increase in the number
of DMRs received in year 4 of the permit (as compared to year 2) is
unknown, EPA suspects it is related to the administrative extension of
EPA's 1992 baseline general permit. Although the 1992 general permit
expired in September 1997, the permit was administratively extended. It
was not until December 28, 1998 that facilities previously covered
under EPA's baseline industrial permit were required to obtain coverage
under the MSGP. As a result, facilities previously covered under the
baseline industrial permit were not required to conduct analytical
monitoring (as required in the second year of the 1995 MSGP). In
essence, the fourth-year monitoring data set EPA received represents
the baseline of pollutant discharge information under the sector-
specific industrial general storm water permit.
Based on the information received during the public comment period
and the DMRs received, EPA believes it is premature to make any final
conclusions regarding the value of the Agency's acquisition of the
monitoring data or to consider dropping the monitoring. EPA is
retaining quarterly analytic monitoring requirements for storm water
discharges as per the 1995 MSGP for all sectors previously identified.
Comparison of pollutant levels against benchmark levels is still
regarded as one of the important tools operators must use to evaluate
their facilities' storm water pollution prevention plans (SWPPPs) and
best management practices (BMPs). Facilities' discharge monitoring
reports (DMRs) are also vital to the Agency for use in characterizing
an industrial sector's discharges. EPA has not, and does not, intend
for pollutant levels above the benchmark values to mean a facility is
out of compliance with the MSGP-2000.
While today's permit retains the analytical monitoring requirements
of the 1995 MSGP, the Agency continues to support the position that any
analytical monitoring program required

[[Page 64769]]

under the MSGP needs to be structured so that it provides useful
information to facility operators, EPA and the general public on the
effectiveness of Storm Water Pollution Prevention Plans. EPA commits to
using data from the 1995 and 2000 permits to evaluate the effectiveness
of management practices on an industry sector basis and to evaluate the
need for changes in monitoring protocols for the next permit. The
Agency will work with program stakeholders in conducting the evaluation
and may seek to implement certain changes possibly on a pilot basis.
Like the 1995 MSGP, today's MSGP requires that all facilities, save
for Sector G, within an industry sector or subsector identified for
analytical monitoring must, at a minimum, monitor their storm water
discharges quarterly during the second year of permit coverage, unless
the facility exercises the Alternative Certification described in
Section VI.E.3 of this fact sheet. At the end of the second year of
coverage under the current permit, a facility is required to calculate
the average concentration for each parameter for which the facility is
required to monitor. If the average concentration for a pollutant
parameter is less than or equal to the benchmark value, then the
permittee is not required to conduct analytical monitoring for that
pollutant during the fourth year of the permit. If, however, the
average concentration for a pollutant is greater than the benchmark
value, then the permittee is required to conduct quarterly monitoring
for that pollutant during the fourth year of permit coverage.
Analytical monitoring is not required during the first, third, and
fifth year of the permit. When average concentrations exceed benchmark
levels, facilities are encouraged to conduct more monitoring if
appropriate to identify additional management practices which may be
necessary to include in their SWPPP. The exclusion from analytical
monitoring in the fourth year of the permit was conditional on the
facility maintaining industrial operations and BMPs that will ensure a
quality of storm water discharges consistent with the average
concentrations recorded during the second year of the permit. For
purposes of the above monitoring, year 2 runs from October 1, 2001 to
September 30, 2002; year 4 runs from October 1, 2003 to September 30,
2004.
EPA acknowledges that, considering the small number of samples
required per monitoring year (four), and the vagaries of storm water
discharges, it may be difficult to determine or confirm the existence
of a discharge problem as a commenter claimed. When viewed as an
indicator, analytic levels considerably above benchmark values can
serve as a flag to the operator that his SWPPP needs to be reevaluated
and that pollutant loads may need to be reduced. Conversely, analytic
levels below or near benchmarks can confirm to the operator that his
SWPPP is doing its intended job. EPA believes there is presently no
alternative that provides stakeholders with an equivalent indicator of
program effectiveness.
Commenters also had concerns that only four samples and variability
in conditions severely reduce the utility of monitoring results for
judging BMP effectiveness. While not practicable for EPA to require an
increase in monitoring, operators are encouraged to sample more
frequently to improve the statistical validity of their results. Unless
the proper data acquisition protocol for making a valid BMP
effectiveness determination is rigorously followed, any other method
used to assess BMP effectiveness would be qualitative, and therefore
less reliable. The least subjective approach, and most beneficial to
operators and stakeholders, EPA believes, remains a combination of
visual and analytic monitoring, using analyte benchmark levels to
target potential problems. Statistical uncertainties inherent in the
monitoring results will necessitate both operators and EPA exercising
best professional judgement in interpreting the results. As stated
above, when viewed as an indicator, analytic levels considerably above
benchmark values can serve as a flag to the operator that his SWPPP
needs to be reevaluated and that pollutant loads may need to be
reduced. Conversely, analytic levels below or near benchmarks can
confirm to the operator that his SWPPP is doing its intended job.
Commenters had additional concerns regarding impacts of storm water
on water quality standards and that monitoring has marginal value in
assessing and protecting water quality. In the absence of establishing
discharge pollutant levels that correlate directly to water quality
standards, as would be done for an individual permit, EPA settled on
benchmark levels which would, under nearly all scenarios, be protective
of water quality standards. Recognizing the shortcomings of these
generic pollutant levels, EPA only intends for them to be used as
indicators of possible problems and as a flag to reevaluate the SWPPP
and possibly the operation of the facility--not as a trigger to begin
mandatory SWPPP or operational revisions (unless, after employing BPJ,
the operator deems such revisions are necessary).
Monitoring results also serve as an oversight tool for EPA to
prioritize sites which may benefit from a site inspection. A
requirement to submit test results serves as an incentive for the
facility operator to perform the monitoring and take any necessary
action based on the results.
Some commenters felt the validity of benchmark values need to be
reevaluated. Universal WQ-based discharge levels for storm water cannot
be established; the next best thing would be to determine water
segment-specific total maximum daily loads (TMDLs) for these
discharges. But when benchmarks are employed merely as indicators,
without requiring specific corrective actions beyond using best
professional judgement to reassess present conditions and make any
changes deemed necessary, the present benchmarks are adequate. In many
cases operators can, upon receipt of analytic monitoring results above
benchmarks, still conclude their present SWPPPs/BMPs are adequately
protective of water quality, or that other situations such as
discharging to low-quality, ephemeral streams may obviate the need for
SWPPP/BMP revisions.
The fact that storm water discharge pollutant levels could be
affected by atmospheric/dry deposition, run on and fate in transport,
as well as structural sources, was a concern of a few commenters. EPA
acknowledges the potential for adding pollutants to a facility's
discharges from external or structural sources. Permittees are,
nonetheless, still legally responsible for the quality of all
discharges from their sites (or any runoff that comes into contact with
their structures, industrial activities or materials, regardless of
where these are located)--but not from pollutants that may be
introduced into their discharges outside the boundaries of their
properties. Pollutant levels, whether elevated from air deposition,
run-on from nearby sites, or leachate from on-site structures, remain
the responsibility of permittees. This was affirmed in the ruling by
the Environmental Appeals Board against the General Motors Corporation
CPC-Pontiac Fiero Plant in December 1997.
a. Other Monitoring Options: There were various comments for and
against various alternatives to quarterly analytic monitoring
submitted. The other non-analytic monitoring options are summarized in
the following paragraphs, along with EPA responses.
b. Visual Monitoring: Numerous commenters supported dropping
analytic monitoring from the MSGP-

[[Page 64770]]

2000 in favor of just requiring quarterly visual monitoring. Commenters
claimed visual monitoring is adequate to ensure compliance and
environmental protection (especially coupled with training), and is
least burdensome.
Quarterly visual monitoring of storm water discharges has always
been a permit requirement, for many of the same reasons why commenters
favor it, and will continue to be so. EPA will also be retaining
analytic monitoring because we believe the best way to ensure SWPPP
effectiveness and protection of water quality is through a combination
of visual and analytic monitoring. The reasons for not adopting visual
monitoring only are explained further in the rationale for justifying
quarterly analytic monitoring.
c. Annual Reporting: One option suggested by commenters was for an
annual report, possibly using a standardized form, to be submitted to
EPA detailing the permittee's SWPPP highlights and revisions/additions,
inspections, compliance evaluations, visual monitoring results, etc.
This information is already required to be documented in a facility's
SWPPP, which, if deemed necessary, must be provided to EPA on demand.
One comment against this option stated that the volume of data
submitted would be too great for the Agency to evaluate. Other
opponents to this option indicated that the reports would not contain
enough information to evaluate SWPPP effectiveness, ensure water
quality protection, or provide the information necessary to make long-
term management plans. Commenters in support of the annual report
concept held that it would provide a record of the permittee's
commitment to storm water control, was better for evaluating SWPPP
effectiveness, and would provide information to EPA to determine if
sampling or a site inspection is needed.
If no monitoring data were available, an annual report could be
used to ensure that a facility is implementing its SWPPP. The reports
could also be used to prioritize sites for inspection. However, EPA
agrees that it would be very burdensome to review all the reports and
very difficult to assess the effectiveness of a facility's SWPPP based
on that review alone. The subjectivity inherent in annual reporting
makes it a undesirable substitute for analytic monitoring. Documenting
the kind of information in the annual report is already a SWPPP
requirement, and is therefore available to operators for assessing and
improving their storm water programs. For these reasons, EPA will not
require reports containing essentially the same information required in
SWPPPs to be submitted in lieu of analytic monitoring.
d. Group Monitoring: Commenters also suggested group monitoring. In
this option a consortium of like permittees would do sampling at one
facility, possibly on a rotating basis. The sample results would
represent all the facilities in the consortium. A variation of group
monitoring is for the consortium to retain a consultant to do
representative sampling and provide storm water program guidance and
evaluations. Supporters of this concept said it may allow for
comparisons of effectiveness of different SWPPP practices (e.g.,
sweeping vs. catchment basin for solids control). One commenter pointed
out that the feasibility of the group concept is suspect due to the
fact that individual facilities may have different topography, soil and
other natural conditions. EPA believes that technically valid BMP
comparisons could be done under this type of program. However, it would
be difficult and very resource-intensive for EPA to establish criteria
for group eligibility and then monitor to ensure that groups met these
criteria.
e. Watershed Monitoring: This option involves replacing the
monitoring of discrete storm water discharges with ambient receiving
water monitoring on a watershed basis. Watershed monitoring is
invaluable to making real conclusions regarding storm water impacts of
water quality, and will be employed in making total maximum daily load
(TMDL). However, watershed monitoring cannot replace facility-specific
storm water discharge monitoring to determine the loads contributed by
the facilities and to evaluate the effectiveness of the SWPPP.
f. Monitoring Only in Impaired Waters: Several commenters supported
requiring monitoring only in impaired water bodies and for pollutants
that cause the impairment. Although this option would focus attention
on the problem water bodies and possible pollutant sources, EPA and a
commenter point out that not all impaired water bodies and their
impairments have been determined. The goal of EPA's storm water program
is also to protect and maintain water quality, not just remediate
impaired waters, so focusing on impaired waters only does not fulfill
all the program's responsibilities.
2. Compliance Monitoring
Today's final MSGP retains the same compliance monitoring
requirements as the 1995 MSGP, and also includes compliance monitoring
requirements for certain storm water discharges from new and existing
hazardous and non-hazardous landfills. As noted earlier, EPA has
recently finalized effluent limitations guidelines for these landfills
(65 FR 3007, January 19, 2000) and the compliance monitoring is
required to ensure compliance with the guidelines. These discharges
must generally be sampled annually (in some cases quarterly) and tested
for the parameters which are limited by the permit. Discharges subject
to compliance monitoring include (in addition to the landfills
discharges): coal pile runoff, contaminated runoff from phosphate
fertilizer manufacturing facilities, runoff from asphalt paving and
roofing emulsion production areas, material storage pile runoff from
cement manufacturing facilities, and mine dewatering discharges from
crushed stone, construction sand and gravel, and industrial sand mines
located in EPA Regions 1, 2, 3, 6, 8, 9, 10. All samples are to be
grabs taken within the first 30 minutes of discharge where practicable,
but in no case later than the first hour of discharge. Where
practicable, the samples shall be taken from the discharges subject to
the numeric effluent limitations prior to mixing with other discharges.
Monitoring for these discharges is required to determine compliance
with numeric effluent limitations. Discharges covered under today's
final MSGP which are subject to numeric effluent limitations are not
eligible for the alternative certification described in Section VI.E.3
of this fact sheet.
Where a State or Tribe has imposed a numeric effluent limitation as
a condition for certification under CWA Sec. 401, a default minimum
monitoring frequency of once per year has been included in the final
permit. This default monitoring frequency would only apply if a State
failed to provided a monitoring frequency along with their conditional
Sec. 401 certification.
3. Alternate Certification
Today's final MSGP retains the provision in the 1995 MSGP for an
alternative certification in lieu of analytical monitoring. The MSGP
includes monitoring requirements for facilities which the Agency
believes have the potential for contributing significant levels of
pollutants to storm water discharges. The alternative certification
described below is included in the permit to ensure that monitoring
requirements are only imposed on those facilities which do, in fact,
have storm water discharges containing pollutants at concentrations of
concern. EPA has determined that if there are no sources of a pollutant

[[Page 64771]]

exposed to storm water at the site then the potential for that pollutant
to contaminate storm water discharges does not warrant monitoring.
A discharger is not subject to the analytical monitoring
requirements provided the discharger makes a certification for a given
outfall, on a pollutant-by-pollutant basis, that material handling
equipment or activities, raw materials, intermediate products, final
products, waste materials, by-products, industrial machinery or
operations, significant materials from past industrial activity that
are located in areas of the facility that are within the drainage area
of the outfall are not presently exposed to storm water and will not be
exposed to storm water for the certification period. Such certification
must be retained in the SWPPP, and submitted to EPA in lieu of
monitoring reports required under Part 7 of the permit. The permittee
is required to complete any and all sampling until the exposure is
eliminated. If the facility is reporting for a partial year, the
permittee must specify the date exposure was eliminated. If the
permittee is certifying that a pollutant was present for part of the
reporting period, nothing relieves the permittee from the
responsibility to sample that parameter up until the exposure was
eliminated and it was determined that no significant materials
remained. This certification is not to be confused with the low
concentration sampling waiver. The test for the application of this
certification is whether the pollutant is exposed, or can be expected
to be present in the storm water discharge. If the facility does not
and has not used a parameter, or if exposure is eliminated and no
significant materials remain, then the facility can exercise this
certification.
As noted above, the MSGP does not allow facilities with discharges
subject to numeric effluent limitations guidelines to submit
alternative certification in lieu of compliance monitoring
requirements. The permit also does not allow air transportation
facilities or hard rock mines subject to the analytical monitoring
requirements in Part 6 of the final MSGP to exercise an alternative
certification.
A facility is not precluded from exercising the alternative
certification in lieu of analytical monitoring requirements in the
second or fourth year of the reissued MSGP, even if that facility has
failed to qualify for a low concentration waiver thus far. EPA
encourages facilities to eliminate exposure of industrial activities
and significant materials where practicable.
4. Reporting and Retention Requirements
Like the 1995 MSGP, today's final MSGP requires that permittees
submit all analytical monitoring results obtained during the second and
fourth year of permit coverage. As noted earlier, year 2 runs from
October 1, 2001 to September 30, 2002; year 4 runs from October 1, 2003
to September 30, 2004. Monitoring results must be submitted by January
28, 2003 for year 2 monitoring and January 28, 2005 for year 4 monitoring.
For each outfall, one Discharge Monitoring Report (DMR) form must
be submitted per storm event sampled. For facilities conducting
monitoring beyond the minimum requirements, an additional DMR form must
be filed for each analysis. The permittee must include a measurement or
estimate of the total precipitation, volume of runoff, and peak flow
rate of runoff for each storm event sampled. Permittees subject to
compliance monitoring requirements are required to submit all
compliance monitoring results annually by October 28 following each
annual sampling period (which run from October 1 of each year to
September 30 of the following year). Compliance monitoring results must
be submitted on signed DMR forms. For each outfall, one DMR form must
be submitted for each storm event sampled.
Permittees are not required to submit records of the visual
examinations of storm water discharges unless specifically asked to do
so by the Director. Records of the visual examinations must be
maintained at the facility. Records of visual examination of storm
water discharge need not be lengthy. Permittees may prepare typed or
hand written reports using forms or tables which they may develop for
their facility. The report need only document: the date and time of the
examination; the name of the individual making the examination; and any
observations of color, odor, clarity, floating solids, suspended solids,
foam, oil sheen, and other obvious indicators of storm water pollution.
The address for submission of DMR forms for today's final MSGP is
as follows: MSGP DMR (4203), U.S. EPA, 1200 Pennsylvania Avenue, NW.,
Washington, DC 20460.
Under the 1995 MSGP, DMRs had been sent to the EPA Regional
Offices. However, to facilitate review of all DMRs from facilities
operating under the MSGP, the final MSGP requires that they be sent to
the one location specified above.
Today's final MSGP also retains the requirement in the 1995 MSGP
that permittees submit signed copies of DMRs to the operator of a large
or medium MS4 (those which serve a population of 100,000 or more), if
there are discharges of storm water associated with industrial activity
through the MS4.
The location for submission of all reports (other than DMRs) for
today's final MSGP remains the EPA Regional Offices as found in Part
8.3 of the final permit. Consistent with Office of Management and
Budget Circular A-105, facilities located on the following Federal
Indian Reservations, which cross EPA Regional boundaries, should note
that permitting authority for such lands is consolidated in one single
EPA Region.
a. Duck Valley Reservations lands, located in Regions 9 and 10, are
handled by Region 9.
b. Fort McDermitt Reservation lands, located in Regions 9 and 10,
are handled by Region 9.
c. Goshute Reservation lands, located in Regions 8 and 9, are
handled by Region 9.
d. Navajo Reservation lands, located in Regions 6, 8, and 9, are
handled by Region 9.
e. Ute Mountain Reservation lands, located in Regions 6 and 8, are
handled Region 8.
Pursuant to the requirements of 40 CFR 122.41(j), today's MSGP
(like the 1995 MSGP) requires permittees to retain all records for a
minimum of three years from the date of the sampling, examination, or
other activity that generated the data.
5. Sample Type
Today's final MSGP retains the same requirements regarding the type
of sampling as the 1995 MSGP. A general description is provided below.
Certain industries have different requirements. Permittees should check
the industry-specific requirements in Part 6 of the final permit to
confirm these requirements. Grab samples may be used for all monitoring
unless otherwise stated. All such samples shall be collected from the
discharge resulting from a storm event that is greater than 0.1 inches
in magnitude and that occurs at least 72 hours from the previously
measurable (greater than 0.1 inch rainfall) storm event. The required
72-hour storm event interval may be waived by the permittee where the
preceding measurable storm event did not result in a measurable
discharge from the facility. The 72-hour requirement may also be waived
by the permittee where the permittee

[[Page 64772]]

documents that less than a 72-hour interval is representative for local
storm events during the season when sampling is being conducted. The
grab sample must be taken during the first 30 minutes of the discharge.
If the collection of a grab sample during the first 30 minutes is
impracticable, a grab sample can be taken during the first hour of the
discharge, and the discharger must submit with the monitoring report a
description of why a grab sample during the first 30 minutes was
impracticable. A minimum of one grab is required. Where the discharge
to be sampled contains both storm water and non-storm water, the
facility shall sample the storm water component of the discharge at a
point upstream of the location where the non-storm water mixes with the
storm water, if practicable.
6. Representative Discharge
Today's MSGP retains the same provision as the 1995 MSGP regarding
substantially identical outfalls which allows a facility to reduce its
overall monitoring burden. This representative discharge provision
provides facilities with multiple storm water outfalls, a means for
reducing the number of outfalls that must be sampled and analyzed. This
may result in a substantial reduction of the resources required for a
facility to comply with analytical monitoring requirements. When a
facility has two or more outfalls that, based on a consideration of
industrial activity, significant materials, and management practices
and activities within the area drained by the outfall, the permittee
reasonably believes discharge substantially identical effluents, the
permittee may test the effluent of one such outfall and report that the
quantitative data also apply to the substantially identical outfalls
provided that the permittee includes in the SWPPP a description of the
location of the outfalls and detailed explanation why the outfalls are
expected to discharge substantially identical effluent. In addition,
for each outfall that the permittee believes is representative, an
estimate of the size of the drainage area (in square feet) and an
estimate of the runoff coefficient of the drainage area (e.g., low
(under 40 percent), medium (40 to 65 percent) or high (above 65
percent)) shall be provided in the plan. Facilities that select and
sample a representative discharge are prohibited from changing the
selected discharge in future monitoring periods unless the selected
discharge ceases to be representative or is eliminated. Permittees do
not need EPA approval to claim discharges are representative, provided
they have documented their rationale within the SWPPP. However, the
Director may determine the discharges are not representative and
require sampling of all non-identical outfalls.
The representative discharge provision in the permit is available
to almost all facilities subject to the analytical monitoring
requirements (not including compliance monitoring for effluent
guideline limit compliance purposes) and to facilities subject to
visual examination requirements.
The representative discharge provisions described above are
consistent with Section 5.2 of NPDES Storm Water Sampling Guidance
Document (EPA 833-B-92-001, July 1992).
7. Sampling Waiver
Today's final MSGP retains the same provisions for sampling waivers
(as discussed below) which are found in the 1995 MSGP:
a. Adverse Weather Conditions. Today's final MSGP allows for
temporary waivers from sampling based on adverse climatic conditions.
This temporary sampling waiver is only intended to apply to
insurmountable weather conditions such as drought or dangerous
conditions such as lightning, flash flooding, or hurricanes. These
events tend to be isolated incidents and should not be used as an
excuse for not conducting sampling under more favorable conditions
associated with other storm events. The sampling waiver is not intended
to apply to difficult logistical conditions, such as remote facilities
with few employees or discharge locations which are difficult to
access. When a discharger is unable to collect samples within a
specified sampling period due to adverse climatic conditions, the
discharger shall collect a substitute sample from a separate qualifying
event in the next sampling period as well as a sample for the routine
monitoring required in that period. Both samples should be analyzed
separately and the results of that analysis submitted to EPA.
Permittees are not required to obtain advance approval for sampling
waivers.
b. Unstaffed and Inactive Sites--Chemical Sampling Waiver. Today's
final MSGP allows for a waiver from sampling for facilities that are
both inactive and unstaffed. This waiver is only intended to apply to
these facilities where lack of personnel and locational impediments
hinder the ability to conduct sampling (i.e., the ability to meet the
time and representative rainfall sampling specifications). This waiver
is not intended to apply to remote facilities that are active and
staffed, or to facilities with just difficult logistical conditions.
When a discharger is unable to collect samples as specified in this
permit, the discharger shall certify to the Director in the DMR that
the facility is unstaffed and inactive and the ability to conduct
samples within the specifications is not possible. Permittees are not
required to obtain advance approval for this waiver.
c. Unstaffed and Inactive Sites--Visual Monitoring Waiver. Today's
final MSGP allows for a waiver from sampling for facilities that are
both inactive and unstaffed. This waiver is only intended to apply to
these facilities where lack of personnel and locational impediments
hinder the ability to conduct visual examinations (i.e., the ability to
meet the time and representative rainfall sampling specifications).
This monitoring waiver is not intended to apply to remote facilities
that are active and staffed, or to facilities with just difficult
logistical conditions. When a discharger is unable to perform visual
examinations as specified in this permit, the discharger shall maintain
on site with the pollution prevention plan a certification stating that
the facility is unstaffed and inactive and the ability to perform
visual examinations within the specifications is not possible.
Permittees are not required to obtain advance approval for visual
examination waivers.
8. Quarterly Visual Examination of Storm Water Quality
Today's final MSGP retains the requirements of the 1995 MSGP for
quarterly visual examinations of storm water discharges which EPA
continues to believe provide a useful and inexpensive means for
permittees to evaluate the effectiveness of their SWPPPs (with
immediate feedback) and make any necessary modifications to address the
results of the visual examinations. All sectors of today's final MSGP
are required to conduct these examinations. In the 1995 MSGP all
sectors except Sector S (which covers air transportation) were required
to conduct the examinations.
Basically, the MSGP requires that grab samples of storm water
discharges be taken and examined visually for the presence of color,
odor, clarity, floating solids, settled solids, suspended solids, foam,
oil sheen or other obvious indicators of storm water pollution. The
grab samples must be taken within the first 30 minutes after storm
water discharges begin, or as soon as practicable, but not longer than
1 hour after discharges begin. The sampling must be conducted quarterly
during the

[[Page 64773]]

following time periods: January-March, April-June, July-September and
October-December of each year. The reports summarizing these quarterly
visual storm water examinations must be maintained on-site with the SWPPP.
The examination of the sample must be made in well lit areas. The
visual examination is not required if there is insufficient rainfall or
snow-melt to run off or if hazardous conditions prevent sampling.
Whenever practicable the same individual should carry out the
collection and examination of discharges throughout the life of the
permit to ensure the greatest degree of consistency possible in
recording observations.
When conducting a storm water visual examination, the pollution
prevention team, or team member, should attempt to relate the results
of the examination to potential sources of storm water contamination on
the site. For example, if the visual examination reveals an oil sheen,
the facility personnel (preferably members of the pollution prevention
team) should conduct an inspection of the area of the site draining to
the examined discharge to look for obvious sources of spilled oil,
leaks, etc. If a source can be located, then this information allows
the facility operator to immediately conduct a clean-up of the
pollutant source, and/or to design a change to the SWPPP to eliminate
or minimize the contaminant source from occurring in the future.
Other examples include: if the visual examination results in an
observation of floating solids, the personnel should carefully examine
the solids to see if they are raw materials, waste materials or other
known products stored or used at the site. If an unusual color or odor
is sensed, the personnel should attempt to compare the color or odor to
the colors or odors of known chemicals and other materials used at the
facility. If the examination reveals a large amount of settled solids,
the personnel may check for unpaved, unstabilized areas or areas of
erosion. If the examination results in a cloudy sample that is very
slow to settle out, the personnel should evaluate the site draining to
the discharge point for fine particulate material, such as dust, ash,
or other pulverized, ground, or powdered chemicals.
To be most effective, the personnel conducting the visual
examination should be fully knowledgeable about the SWPPP, the sources
of contaminants on the site, the industrial activities conducted
exposed to storm water and the day to day operations that may cause
unexpected pollutant releases.
If the visual examination results in a clean and clear sample of
the storm water discharge, this may indicate that no pollutants are
present. This would be an indication of a high quality result. However,
the visual examination will not provide information about dissolved
contamination. If the facility is in a sector or subsector required to
conduct analytical (chemical) monitoring, the results of the chemical
monitoring, if conducted on the same sample, would help to identify the
presence of any dissolved pollutants and the ultimate effectiveness of
the Storm Water Pollution Prevention Plan. If the facility is not
required to conduct analytical monitoring, it may do so if it chooses
to confirm the cleanliness of the sample.
While conducting the visual examinations, personnel should
constantly be attempting to relate any contamination that is observed
in the samples to the sources of pollutants on site. When contamination
is observed, the personnel should be evaluating whether or not
additional BMPs should be implemented in the SWPPP to address the
observed contaminant and, if BMPs have already been implemented,
evaluating whether or not these are working correctly or need
maintenance. Permittees may also conduct more frequent visual
examinations than the minimum quarterly requirement, if they so choose.
By doing so, they may improve their ability to ascertain the
effectiveness of their plan. Using this guidance, and employing a
strong knowledge of the facility operations, EPA believes that
permittees should be able to maximize the effectiveness of their storm
water pollution prevention efforts through conducting visual
examinations which give direct, frequent feedback to the facility
operator or pollution prevention team on the quality of the storm water
discharge.
EPA believes that this quick and simple assessment will help the
permittee to determine the effectiveness of his/her plan on a regular
basis at very little cost. Although the visual examination cannot
assess the chemical properties of the storm water discharged from the
site, the examination will provide meaningful results upon which the
facility may act quickly. EPA recommends that the visual examination be
conducted at different times than the chemical monitoring, but is not
requiring this. In addition, more frequent visual examinations can be
conducted if the permittee so chooses. In this way, better assessments
of the effectiveness of the Storm Water Pollution Prevention Plan can
be achieved. The frequency of this visual examination will also allow
for timely adjustments to be made to the plan. If BMPs are performing
ineffectively, corrective action must be implemented. A set of tracking
or followup procedures must be used to ensure that appropriate actions
are taken in response to the examinations. The visual examination is
intended to be performed by members of the pollution prevention team.
This hands-on examination will enhance the staff's understanding of the
site's storm water problems and the effects of the management practices
that are included in the plan.

F. Regional Offices

1. Notice of Intent Address
Notices of Intent to be authorized to discharge under the MSGP
should be sent to: Storm Water Notice of Intent (4203), USEPA, 401 M
Street, SW., Washington, DC 20460.
2. EPA Regional Office Addresses and Contacts
For further information, please call the appropriate EPA Regional
storm water contacts listed below:
ME, MA, NH, Indian country in CT, MA, ME, RI, and Federal
Facilities in VT
EPA Region 1, Office of Ecosystem Protection, JFK Federal Building
(CMU), Boston, MA 02203, Contact: Thelma Murphy (617) 918-1615.
PR
U.S. EPA, Region 2, Caribbean Environmental Protection Division,
Centro Europa Building, 1492 Ponce de Leon Avenue, Suite 417, San Juan,
Puerto Rico 00907-4127, Contact: Sergio Bosques (787) 729-6951.
DC and Federal Facilities in DE
EPA Region 3, Water Protection Division, (3WP13), Storm Water
Staff, 841 Chestnut Building, Philadelphia, PA 19107, Contact: Cheryl
Atkinson (215) 814-3392.
Indian country in FL
EPA Region 4, Water Management Division, Surface Water Permits
Section (SWPFB), 61 Forsyth Street, SW, Atlanta, GA 30303-3104,
Contact: Floyd Wellborn (404) 562-9296.

[[Page 64774]]

NM; Indian country in LA, OK, TX and NM (Except Navajo and Ute
Mountain Reservation Lands); oil and gas exploration and production
related industries, and pipeline operations in OK (which under State
law are regulated by the Oklahoma Corporation Commission and not the
Oklahoma Department of Environmental Quality); and oil and gas sites in TX.
EPA Region 6, NPDES Permits Section (6WQ-PP), 1445 Ross Avenue,
Dallas, TX 75202-2733, Contact: Brent Larsen (214) 665-7523.
Federal facilities in the State of Colorado; Indian country in
CO, ND, SD, WY and UT (except Goshute and Navajo Reservation lands);
Ute Mountain Reservation lands in CO and NM ; and Pine Ridge
Reservation lands in SD and NE.
EPA Region 8, Ecosystems Pr.otection Program (8EPR-EP), 999 18th
Street, Suite 300, Denver, CO 80202-2466 Contact: Vern Berry (303) 312-
6234.
AZ, American Samoa, Commonwealth of Northern Mariana Islands,
Johnston Atoll, Guam, Midway Island and Wake Island; all Indian country
in AZ, CA, and NV; those portions of the Duck Valley, Fort McDermitt
and Goshute Reservations that are outside NV; those portions of the
Navajo Reservation that are outside AZ.
EPA Region 9, Water Management Division, (WTR-5), Storm Water
Staff, 75 Hawthorne Street, San Francisco, CA 94105, Contact: Eugene
Bromley (415) 744-1906.
ID; Indian country in AK, ID (except the Duck Valley
Reservation), OR (except the Fort McDermitt Reservation), and WA; and
Federal facilities in WA
EPA Region 10, Office of Water (OW-130), Storm Water Staff, 1200
Sixth Avenue, Seattle, WA 98101, Contact: Misha Vakoc (206) 553-6650
(toll-free in Region 10 states: 800-424-4372, extension 6650).

VII. Cost Estimates for Common Permit Requirements

Cost estimates for the MSGP were included with the final fact sheet
accompanying the issuance of the MSGP on September 29, 1995 and are not
being repeated here. However, additional costs for facilities seeking
coverage under the reissued MSGP should be minor since the new MSGP
includes few changes from the 1995 MSGP.

VIII. Special Requirements for Discharges Associated With Specific
Industrial Activities

Section VIII of the fact sheet accompanying the 1995 MSGP included
a detailed description of the industrial sectors covered by the permit,
sources of pollutants from the different types of industries, available
industry-specific BMPs, and a description of the industrial-specific
permit requirements. As noted previously, EPA is not repeating all this
information due to its considerable length. Table 1 in Section IV of
this fact sheet listed the industrial sectors and subsectors covered by
today's final MSGP. For today's MSGP, EPA reviewed the various sectors
and subsectors to determine whether additional BMP opportunities have
been identified subsequent to the issuance of the 1995 MSGP which would
be appropriate to include in the reissued MSGP.
To update the various sectors and subsectors, EPA reviewed a
variety of sources of information. As noted in Section VI.C of this
fact sheet, pollution prevention is the cornerstone of the NPDES storm
water permit program and, as such, EPA focused on new pollution
prevention opportunities in updating the sectors. EPA has several
ongoing programs directed toward identifying additional pollution
prevention opportunities for different industrial sectors. One example
is the ``sector notebooks'' which EPA's Office of Compliance has
published covering 28 different industries, including many of those
covered by the MSGP. EPA's Design for the Environment Program and
Common Sense Initiative are additional examples. States,
municipalities, industry trade associations and individual companies
have also been active in recent years in trying to identify additional
pollution prevention opportunities for different types of industries.
In reviewing the new information, however, EPA has identified only
a few sectors where there appear to be additional storm water BMPs
which would be appropriate for the reissued MSGP. For many industries,
while considerable work has been conducted to reduce the environmental
effects of these industries, little of the work has focused
specifically on storm water. Rather, the efforts have focused more in
areas such as manufacturing process changes to reduce hazardous waste
generation or to reduce pollutant discharges in process wastewater.
Where additional storm water BMPs have been identified and incorporated
into the reissued MSGP, these new requirements are discussed below by
sector. In some sectors, additional language clarifying the permit
requirements has been added and these changes are also discussed below.

A. Sectors C--Chemical and Allied Products Facilities

Industry-specific requirements for the manufacture of fertilizer
from leather scraps (SIC 2873) was moved from Sector Z (Leather Tanning
and Finishing) to Sector C. This change places the requirements for SIC
2873 in the same sector as other manufacturers of fertilizers.

B. Sector G--Metal Mining (Ore Dressing and Mining)

To clarify the applicability of the MSGP regarding construction
activity at metal mining sites and to make metal mining requirements
consistent with mineral mining provisions (Sector J), Sector G has been
modified to indicate that earth-disturbing activities occurring in the
``exploration and construction phase'' of a mining operation must be
covered under EPA's Construction General Permit (63 FR 7858, February
17, 1998) if the area disturbed is one acre or more. All mining
exploration/construction operations of less than one acre must be
covered under the MSGP-2000.
Today's MSGP also incorporates the MSGP modifications of August 7,
1998 (63 FR 42534) regarding storm water discharges from waste rock and
overburden piles. On October 10, 1995, the National Mining Association
challenged the interpretation set forth in Table G-4 of the 1995 MSGP
that runoff from waste rock and overburden piles would categorically be
considered mine drainage subject to effluent limitations guidelines
(ELGs) at 40 CFR Part 440. The litigation was settled on August 7, 1998
with a revised interpretation by EPA of the applicability of the ELGs
which is incorporated into today's MSGP. Under the revised
interpretation, runoff from waste rock and overburden piles is not
subject to ELGs unless it naturally drains (or is intentionally
diverted) to a point source and combines with ``mine drainage'' that is
otherwise subject to the ELGs.
The August 7, 1998 modification of the MSGP provided permit
coverage for storm water discharges from waste rock and overburden
piles which are not subject to ELGs. However, due to concerns regarding
potential pollutants in the discharges, additional monitoring
requirements were included in the permit to determine the pollutant
concentrations in the discharges. These monitoring requirements are also

[[Page 64775]]

included in today's MSGP. The monitoring results which have been
submitted to EPA pursuant to these requirements were also considered in
determining the monitoring requirements for today's permit for this sector.
Concerns were expressed by some commenters over the use of the term
``Numeric limitation'' in the headings in the tables in Sector G in the
proposed MSGP. However, since there are no actual numeric limitations
in the tables, EPA believes this concern is not justified and the final
MSGP has not been modified in response to these comments. In response
to other comments, the revised Table G-4 from the August 7, 1998 MSGP
modification has been added to the permit in Part 6.G.
In response to comments received on the proposed MSGP, the language
in Part 6.G.1.6.6 of the final MSGP was modified to indicate that a
permittee may test ``or evaluate'' mining-related discharges for non-
storm water discharges to make today's MSGP consistent with the 1995 MSGP.
Also in response to comments, the permit language in the final MSGP
which defines the reclamation phase was modified to reflect post-mining
land uses other than ``pre-mining state'' which had been in the
proposed MSGP. In addition, the final MSGP has been clarified to indicate
that sampling waivers in Part 5.3.1 of the MSGP do apply to Sector G.

C. Sector I--Oil and Gas Extraction and Refining

In response to a comment, the title for Sector I was changed to
include ``Refining'' to clarify that runoff from refineries (except
runoff subject to effluent limitations guidelines) is eligible for
coverage under today's MSGP.

D. Sector J--Mineral Mining and Processing

EPA has re-evaluated the provisions of the 1995 MSGP for industrial
facilities in Sector J to determine whether these provisions need to be
updated for the reissued MSGP. To clarify the applicability of the MSGP
regarding construction activity at mineral mining sites and to make
mineral mining requirements consistent with metal mining provisions
(Sector G), Sector J has been modified to indicate that earth-
disturbing activities occurring in the ``exploration and construction
phase'' of a mining operation must be covered under EPA's Construction
General Permit (63 FR 7858, February 17, 1998) if the area disturbed is
one acre or more. All mining exploration/construction operations of
less than one acre must be covered under the MSGP-2000.

E. Sector K--Hazardous Waste Treatment, Storage or Disposal Facilities

EPA has re-evaluated the provisions of the 1995 MSGP for industrial
facilities in Sector K to determine whether these provisions need to be
updated for the reissued MSGP. On January 19, 2000 (65 FR 3008), EPA
promulgated final effluent limitations guidelines (ELGs) for
``contaminated storm water discharges'' from new and existing hazardous
landfill facilities regulated under RCRA Subtitle C at 40 CFR Parts 264
(Subpart N) and 265 (Subpart N), except for the following ``captive''
landfills:
(a) Landfills operated in conjunction with other industrial or
commercial operations when the landfill only receives wastes generated
by the industrial or commercial operation directly associated with the
landfill;
(b) Landfills operated in conjunction with other industrial or
commercial operations when the landfill receives wastes generated by
the industrial or commercial operation directly associated with the
landfill and also receives other wastes provided the other wastes
received for disposal are generated by a facility that is subject to
the same provisions in 40 CFR Subchapter N as the industrial or
commercial operation or the other wastes received are of similar nature
to the wastes generated by the industrial or commercial operation;
(c) Landfills operated in conjunction with Centralized Waste
Treatment (CWT) facilities subject to 40 CFR Part 437 so long as the
CWT facility commingles the landfill wastewater with other non-landfill
wastewater for discharge. A landfill directly associated with a CWT
facility is subject to this part if the CWT facility discharges
landfill wastewater separately from other CWT wastewater or commingles
the wastewater from its landfill only with wastewater from other
landfills; or
(d) Landfills operated in conjunction with other industrial or
commercial operations when the landfill receives wastes from public
service activities so long as the company owning the landfill does not
receive a fee or other remuneration for the disposal service.
For Sector K of the new MSGP, EPA has included the new ELGs (40 CFR
Part 445 Subpart A) for hazardous landfill facilities.
The term ``contaminated storm water'' is defined in the ELGs as
``storm water which comes in direct contact with landfill wastes, the
waste handling and treatment areas, or landfill wastewater.'' [40 CFR
445.2]. Contaminated storm water may originate from areas at a landfill
including (but not limited to): ``the open face of an active landfill
with exposed waste (no cover added); the areas around wastewater
treatment operations; trucks, equipment or machinery that has been in
direct contact with the waste; and waste dumping areas.'' [40 CFR 445.2].
The term ``non-contaminated storm water'' is defined in the ELGs as
``storm water which does not come in direct contact with landfill
wastes, the waste handling and treatment areas, or landfill
wastewater.'' [40 CFR 445.2]. Non-contaminated storm water includes
storm water which ``flows off the cap, cover, intermediate cover, daily
cover, and/or final cover of the landfill.'' [40 CFR 445.2].
The term ``landfill wastewater'' is defined in the ELGs as ``all
wastewater associated with, or produced by, landfilling activities
except for sanitary wastewater, non-contaminated storm water,
contaminated groundwater, and wastewater from recovery pumping wells.
Landfill wastewater includes, but is not limited to, leachate, gas
collection condensate, drained free liquids, laboratory derived
wastewater, contaminated storm water and contact washwater from washing
truck, equipment, and railcar exteriors and surface areas which have
come in direct contact with solid waste at the landfill facility.''
The 1995 MSGP authorized discharges of storm water associated with
industrial activity which includes contaminated storm water discharges
(as defined above) as well as other non-contaminated storm water
discharges (also defined above). Today's final MSGP continues to
authorize storm water associated with industrial activity; however, for
contaminated storm water discharges as defined above, the reissued MSGP
requires compliance with the promulgated ELGs for such discharges (with
monitoring once/year during each year of the term of the final MSGP).
The ELGs for the new and existing hazardous landfills are found in
Table K-1 below:

Table K-1--Effluent Limitations Guidelines for Contaminated Storm Water
Discharges (mg/l)
------------------------------------------------------------------------
Maximum for 1 Monthly average
Pollutant day maximum
------------------------------------------------------------------------
BOD5.............................. 220 56

[[Page 64776]]

TSS............................... 88 27
Ammonia........................... 10 4.9
Alpha Terpineol................... 0.042 0.019
Aniline........................... 0.024 0.015
Benzoic Acid...................... 0.119 0.073
Naphthalene....................... 0.059 0.022
p-Cresol.......................... 0.024 0.015
Phenol............................ 0.048 0.029
Pyridine.......................... 0.072 0.025
Arsenic (Total)................... 1.1 0.54
Chromium (Total).................. 1.1 0.46
Zinc (Total)...................... 0.535 0.296
pH................................ Within the range of 6-9 pH units.
------------------------------------------------------------------------

Today's final MSGP (like the 1995 MSGP) does not authorize non-
storm water discharges such as leachate and vehicle and equipment
washwater. These and other landfill-generated wastewaters are subject
to the ELGs. Today's final MSGP does, however, continue to authorize
certain minor non-storm water discharges (listed in Part 1.2.2.2) which
are very similar to the 1995 MSGP.

F. Sector L--Landfills, Land Application Sites and Open Dumps

EPA has re-evaluated the provisions of the 1995 MSGP for industrial
facilities in Sector L to determine whether these provisions need to be
updated for the reissued MSGP. The SWPPP requirements of the 1995 MSGP
already include several special BMPs for this industry in addition to
the MSGP's basic BMP requirements.
On January 19, 2000 (65 FR 3008), EPA promulgated final effluent
limitations guidelines (ELGs) for ``contaminated storm water
discharges'' from new and existing non-hazardous landfill facilities
regulated under RCRA Subtitle D (40 CFR Part 445 Subpart B). For Sector
L of today's MSGP, EPA has included the ELGs as they apply to
facilities covered by this sector. For Sector L facilities, the ELGs
apply to:
Municipal solid waste landfills regulated under RCRA Subtitle D at
40 CFR Part 258 and those landfills which are subject to the provisions
of 40 CFR Part 257, except for any of the following ``captive'' landfills:
(a) Landfills operated in conjunction with other industrial or
commercial operations when the landfill only receives wastes generated
by the industrial or commercial operation directly associated with the
landfill;
(b) Landfills operated in conjunction with other industrial or
commercial operations when the landfill receives wastes generated by
the industrial or commercial operation directly associated with the
landfill and also receives other wastes provided the other wastes
received for disposal are generated by a facility that is subject to
the same provisions in 40 CFR Subchapter N as the industrial or
commercial operation or the other wastes received are of similar nature
to the wastes generated by the industrial or commercial operation;
(c) Landfills operated in conjunction with Centralized Waste
Treatment (CWT) facilities subject to 40 CFR Part 437 so long as the
CWT facility commingles the landfill wastewater with other non-landfill
wastewater for discharge. A landfill directly associated with a CWT
facility is subject to this part if the CWT facility discharges
landfill wastewater separately from other CWT wastewater or commingles
the wastewater from its landfill only with wastewater from other
landfills; or
(d) Landfills operated in conjunction with other industrial or
commercial operations when the landfill receives wastes from public
service activities so long as the company owning the landfill does not
receive a fee or other remuneration for the disposal service.
EPA has not modified Sector L for the discharges which are not
subject to the ELGs. In addition, EPA would like to call attention to a
new EPA publication entitled ``Guide for Industrial Waste Management''
(EPA 530-R-99-001, June, 1999) which provides a useful information
resource for permittees in complying with the MSGP, and in minimizing
the impact of landfills to the environment overall.
The term ``contaminated storm water'' is defined in the ELGs as
``storm water which comes in direct contact with landfill wastes, the
waste handling and treatment areas, or landfill wastewater.'' [40 CFR
445.2]. Contaminated storm water may originate from areas at a landfill
including (but not limited to): ``the open face of an active landfill
with exposed waste (no cover added); the areas around wastewater
treatment operations; trucks, equipment or machinery that has been in
direct contact with the waste; and waste dumping areas.'' [40 CFR 445.2].
The term ``non-contaminated storm water'' is defined in the ELGs as
``storm water which does not come in direct contact with landfill
wastes, the waste handling and treatment areas, or landfill
wastewater.'' [40 CFR 445.2]. Non-contaminated storm water includes
storm water which ``flows off the cap, cover, intermediate cover, daily
cover, and/or final cover of the landfill.'' [40 CFR 445.2].
The term ``landfill wastewater'' is defined in the ELGs as ``all
wastewater associated with, or produced by, landfilling activities
except for sanitary wastewater, non-contaminated storm water,
contaminated groundwater, and wastewater from recovery pumping wells.
Landfill wastewater includes, but is not limited to, leachate, gas
collection condensate, drained free liquids, laboratory derived
wastewater, contaminated storm water and contact washwater from washing
truck, equipment, and railcar exteriors and surface areas which have
come in direct contact with solid waste at the landfill facility.'' [40
CFR 445.2].
The 1995 MSGP authorized discharges of storm water associated with
industrial activity from landfills including contaminated storm water
discharges as defined in the ELGs as well as non-contaminated storm
water. Today's final MSGP continues to authorize storm water associated
with industrial activity; however, for contaminated storm water
discharges as defined above, today's MSGP requires compliance with the
promulgated ELGs for such discharges (with monitoring once/year during
each year of the term of the final MSGP). The ELGs are found in Table
L-1 below:

Table L-1--Effluent Limitations Guidelines for Contaminated Storm Water
Discharges (mg/l)
------------------------------------------------------------------------
Maximum for 1 Monthly average
Pollutant Day maximum
------------------------------------------------------------------------
BOD5.............................. 140 37
TSS............................... 88 27
Ammonia........................... 10 4.9
Alpha Terpineol................... 0.033 0.016
Benzoic Acid...................... 0.12 0.071
p-Cresol.......................... 0.025 0.014
Phenol............................ 0.026 0.015
Zinc (Total)...................... 0.20 0.11
pH................................ within the range of 6-9 pH units.
------------------------------------------------------------------------

Today's final MSGP (like the 1995 MSGP) does not authorize non-
storm water discharges such as leachate and vehicle and equipment
washwater. These and other landfill-generated wastewaters are subject
to the ELGs. Today's MSGP does, however, continue to authorize the same
minor non-storm water discharges (listed in Part 1.2.2.2) as the 1995
MSGP.

[[Page 64777]]

G. Sector S--Air Transportation Facilities

EPA has re-evaluated the provisions of the 1995 MSGP for industrial
facilities in Sector S to determine whether these provisions need to be
updated for the reissued MSGP. The SWPPP requirements of the 1995 MSGP
included several special BMP requirements for airports in addition to
the MSGP's basic BMP requirements. Additional technologies have been
developed since the original MSGP issuance for deicing operations which
have been included in today's MSGP. A lengthy (but not comprehensive)
list of new deicing chemical and BMP options is provided in Parts
6.S.5.3.6.2 and 6.S.5.3.7. More information on these options is found
in the EPA publication ``Preliminary Data Summary, Airport Deicing
Operations'' (http://www.epa.gov/ost/guide/airport/index.html).
The MSGP-2000 has been clarified such that compliance evaluations
(Part 6.S.5.5) shall be conducted during a period when deicing
activities are likely to occur (vs. a month when deicing activities
would be atypical or during an extended heat wave), not necessarily
during an actual storm or when intense deicing activities are
occurring. This requirement is not seen as onerous, as EPA believes
that most weather conditions can be reasonably anticipated and the
evaluation can be planned for.
In addition, EPA has revised Part 6.S.5.4 to reflect that monthly
inspections of deicing areas during the deicing season (e.g., October
through April) are now allowed at airports with highly effective,
rigorously implemented SWPPPs. This requirement is a reduction from the
previous MSGP's weekly requirement. However, if unusually large amounts
of deicing fluids are being applied, spilled or discharged, weekly
inspections should be conducted and the Director may specifically
require such weekly inspections. In addition, personnel who participate
in deicing activities or work in these areas should, as the need
arises, inform the monthly inspectors of any conditions or incidents
constituting an environmental threat, especially those needing
immediate attention.

H. Sector T--Treatment Works

EPA has re-evaluated the provisions of the 1995 MSGP for industrial
facilities in Sector T to determine whether these provisions need to be
updated for the reissued MSGP. The SWPPP requirements of the 1995 MSGP
already include a few special BMP requirements for this industry in
addition to the MSGP's basic BMP requirements. In reviewing the
information which EPA has available on this industry, EPA has
identified several additional areas at treatment works facilities which
we believe should be considered more closely for potential storm water
controls. As a result, EPA has included additional or modified permit
requirements which we believe are appropriate to include in Sector T.
Today's MSGP requires that operators of Sector T treatment works
include the following additional areas or activities, where they are
exposed to precipitation, in their SWPPP site map, summary of potential
pollutant sources, and inspections: grit, screenings and other solids
handling, storage or disposal areas; sludge drying beds; dried sludge
piles; compost piles; septage and/or hauled waste receiving stations.
An additional BMP that permittees must consider is routing storm water
into the treatment works, or covering exposed materials from these
additional areas or activities.

I. Sector Y--Rubber, Miscellaneous Plastic Products and Miscellaneous
Manufacturing Industries

EPA has re-evaluated the provisions of the 1995 MSGP for industrial
facilities in Sector Y. The 1995 MSGP included several special BMP
requirements for rubber manufacturers to control zinc in storm water
discharges. However, no special BMPs beyond the MSGP's basic SWPPP
requirements were included in the 1995 MSGP for manufacturers of
miscellaneous plastic products or miscellaneous manufacturing industries.
EPA has several ongoing programs directed toward identifying
additional pollution prevention opportunities for different industrial
sectors. For example, EPA's Office of Compliance has published ``sector
notebooks'' for a number of industries, including the rubber and
miscellaneous plastics industry (EPA 310-R-95-016). The sector
notebooks are intended to facilitate a multi-media analysis of
environmental issues associated with different industries and include a
review of pollution prevention opportunities for the industries. As
discussed below, EPA's sector notebook for the rubber and plastic
products industry identifies a number of additional BMPs (beyond those
in the 1995 MSGP) which could further reduce pollutants in storm water
discharges from these facilities, and which have been included in the
reissued MSGP.
1. Rubber Manufacturing Facilities
Today's MSGP requires that rubber manufacturing facility permittees
consider the following additional BMPs (which were selected from those
in the sector notebook) for the rubber product compounding and mixing area:
(1) consider the use of chemicals which are purchased in pre-
weighed, sealed polyethylene bags. The sector notebook points out that
some facilities place such bags directly into the banbury mixer,
thereby eliminating a formerly dusty operation which could result in
pollutants in storm water discharges.
(2) consider the use of containers which can be sealed for
materials which are in use; also consider ensuring an airspace between
the container and the cover to minimize ``puffing'' losses when the
container is opened.
(3) consider the use of automatic dispensing and weighing
equipment. The sector notebook observes that such equipment minimizes
the chances for chemical losses due to spills.
2. Plastic Products Manufacturing Facilities
For plastic products manufacturing facilities, today's final MSGP
requires that permittees consider and include (as appropriate) specific
measures in the SWPPP to minimize loss of plastic resin pellets to the
environment. These measures include (at a minimum) spill minimization,
prompt and thorough cleanup of spills, employee education, thorough
sweeping, pellet capture and disposal precautions. Additional specific
guidance on minimizing loss can be found in the EPA publication
entitled ``Plastic Pellets in the Aquatic Environment: Sources and
Recommendations'' (EPA 842-B-92-010, December, 1992) and at the website
of the Society of the Plastics Industry (www.socplas.org).
3. Industry-Sponsored Efforts
Both the rubber manufacturing and plastic products industries are
also active in sponsoring studies designed to reduce the environmental
impacts associated with the production, use and ultimate disposal of
their products. However, in reviewing recent work in this regard, EPA
has not identified any additional BMPs for storm water discharges which
would be appropriate for the reissued MSGP. Therefore, only the
additional BMPs noted above are included in the reissued MSGP for these
industries.

[[Page 64778]]

IX. Summary of Responses to Comments on the Proposed MSGP

EPA received comments from 45 individuals in response to the
proposed permit. A summary of the Agency's responses to those comments
appears below. Responses to each comment is available from the Water
Docket, whose address and hours of operation are listed in the
introduction to this notice.

Section 1.2 Eligibility

Comment a: One commenter requested clarification on the
responsibilities military bases, which resemble small municipalities,
have with regard to non-industrial areas of the base. The commenter
expressed concern that examples of co-located industrial activities in
Section VI.B.3 of the fact sheet and Part 1.2.1.1 of the proposed
permit could be interpreted to require coverage for all vehicle
maintenance activities at a base, even those unrelated to an industrial
activity. The commenter further noted that bases in urbanized areas
would require base-wide storm water management programs anyway as Small
Municipal Separate Storm Sewer Systems under Phase II of the Storm
Water Program.
Response a: EPA agrees that municipalities and military or other
governmental installations are only responsible for obtaining permits
for storm water associated with industrial activity for those portions
of their municipality or installations where they have a storm water
discharge that is covered under the definition of ``storm water
associated with industrial activity.'' Under this interpretation, even
though a military base may choose to submit a single NOI for all
industrial activities on the base, the SWPPP would only need to
identify facilities/areas associated or not associated with industrial
activities and that have a SWPPP covering the industrial activity
areas. The SWPPP required under the MSGP would not need to address
storm water controls for the non-industrial areas of the base. A note
has been added to Part 4.1 (Storm Water Pollution Prevention Plans) of
the permit to clarify the scope of the SWPPP.
Comment b: The proposed limitations on transfer of storm water
discharges from a previous permit to the MSGP could result in undue
restrictions. The commenter felt that there could be reasons, e.g., for
consistent management of storm water across a site, etc. that either
the permittee or the permitting authority would want to address all
storm water at a facility under a general permit.
Response b: EPA has reconsidered the Part 1.2.3.3.2 restrictions
and Part 1.2.3.3.2.1 of the proposed permit has been eliminated. Part
1.2.3.3.2.1 would only have allowed permittees to seek MSGP coverage
for storm water discharges previously covered by another permit if that
previous permit contained only storm water and eligible non-storm water
(i.e., an individual permit for wastewater, etc. would no longer be
required if coverage under the MSGP was allowed). EPA's review did
identify some unintended consequences and unresolved issues that could
result from this restriction.
A facility (including new facilities) that never had storm water
discharges covered by an individual permit, or which was located where
access to a municipal wastewater treatment plant for wastewater
discharges was available, would have an opportunity for burden
reduction that would not be available to a facility with even cleaner
storm water that happened to have storm water discharges covered in a
previous permit and could not eliminate their wastewater discharges.
There could be cases were a smaller and ``cleaner'' facility would not
be able to take advantage of the savings (e.g., individual permit
application sampling is not required) the MSGP offered their
competitors simply because they had a minor wastewater discharge that
could not be eliminated.
While the main purpose of the proposed Part 1.2.3.3.2.1 restriction
was to discourage dual permits at a facility, there are already many
facilities that have permit coverage split between an individual permit
and the MSGP and dual permit coverage would still be available in many
cases anyway. Currently, some of these ``dual permit'' facilities have
only wastewater under an individual permit and all their storm water
discharges under the MSGP, while at others, the individual wastewater
permit includes some of the storm water discharges, with the remaining
storm water discharges covered by the MSGP. This ability to have split
coverage in at least some situations is necessary to address situations
where at least interim coverage under a general permit for a new storm
water discharge is necessary or desirable from either the permittee's
or the permitting authority's standpoint.
EPA has determined that the proposed restrictions in Part 1.2.3.3.2
relating to discharges for which a water quality-based limit had been
developed and discharges at a facility for which a permit had been (or
was in the process of being) either denied or revoked by the permitting
authority were necessary to address the anti-backsliding requirements
of the Clean Water Act or to ensure that discharges from a facility
requiring the additional scrutiny of an individual permit application
were not inadvertently allowed under the general permit. In any event,
only those storm water discharges under the previous permit that met
all other eligibility conditions of the MSGP could even be considered
for transfer.
EPA periodically promulgates new effluent limitation guidelines,
some of which, such as the those for landfills published February 2,
2000, contain storm water effluent limitation guidelines. Under Part
1.2.2.1.3 of the MSGP, a storm water discharge subject to a promulgated
effluent limitation guideline is only eligible for coverage if that
guideline is listed in Table 1-2. A new guideline promulgated during
the term of the permit would thus alter the eligibility for the permit
not only for new dischargers, but also for discharges already covered
by the permit. In order to avoid the situation where a discharge would
suddenly become ineligible upon promulgation of a new guideline, Part
1.2.2.1.3 has been modified to allow interim coverage under the permit
where a storm water effluent guideline has been promulgated after the
effective date of the permit, but the permit has not yet been modified
to include the new guideline. This will allow continued coverage until
the new storm water guideline could be added to the permit. Where the
new guideline includes new source performance standards, ``new
sources'' would need to comply with Part 1.2.4 prior to seeking permit
coverage.

Section 1.4 Terminating Coverage

Comment: (Comment also addresses Section 11.1 Transfer of Permit
Coverage) Several commenters viewed the submittal of an NOT by the old
operator and the submittal of an NOI by the new operator in order to
transfer permit coverage after a change in ownership as a new and
overly burdensome requirement (Parts 1.4 and 11.1). An alternative
suggested was a simple notice to the permit file of the ownership change.
Response: EPA has determined that the most effective method for
accommodating and tracking a change in the owner/operator at a facility
covered by the general permit is to have the old operator submit a
Notice of Termination certifying that they are no longer the operator
of the facility, and for the new operator to submit a Notice of Intent
certifying their desire and eligibility to be covered by the general
permit. In fact, this is not a new

[[Page 64779]]

requirement since the same process was required under the 1995 MSGP
(see Part II.A.4 and Part XI.A at 60 FR 51113 and 51122, respectively).
The only ``new'' aspect of the process is the 30 day timeframe for
submittal of the NOT by the old operator and a clarification that
simple name changes in a particular company (e.g., Jones Industrial
Manufacturing, Co. changing to JIMCO) can be made with a simple update
to the company's NOI and a NOT would not be required. Submittal of the
NOT by the old operator documents that the old operator believes he no
longer needs coverage under the MSGP for any storm water discharges. In
addition, EPA is more able to maintain a cleaner database of facilities
actually covered by the permit both currently and in the past. The NOI/
NOT process for transfers under the general permit is thus essentially
a streamlined parallel process to what would otherwise be required
under 40 CFR 122.61.
The permit transfer procedures at 40 CFR 122.61 are designed to
avoid the time delays and resource burdens associated with issuance of
a new permit for a facility just because there is a new owner/operator.
Under this process, transfer of the permit to the new owner/operator
cannot be made without an actual permit modification (a lengthy process
especially for general permits), unless the old operator submits a
thirty day advance notice and a written agreement between the parties
containing a specific date for transfer of permit responsibility,
coverage, and liability between them.
The nature of a general permit is such that there is no actual
permit issued to any individual facility, but rather that multiple
dischargers are in effect ``registering'' their intent to use the
discharge authority offered by the general permit to anyone who is
eligible. This ``registration'' is accomplished by an operator's
submittal of the Notice of Intent to be covered by the general permit
as little as two days before they need permit coverage. In fact,
regulations at 40 CFR 122.28(b)(2) specifically require submittal of an
NOI in order for an operator to be authorized under a general permit
for discharges of storm water associated with industrial activity. EPA
thus views the requirements for the new operator to file an NOI as
little as two days prior to the transfer and for the old operator to
file an NOT within thirty days after the transfer to be less burdensome
than the thirty day advance notice and written agreements that would
otherwise be required under the permit transfer requirements of 40 CFR
122.61.

Section 1.5 Conditional Exclusion for No Exposure

Comment: EPA should insert the No Exposure Certification form and
guidance within the permit since many facility operators are unaware of
its existence.
Response: EPA has generated a document, ``Guidance Manual for
Conditional Exclusion from Storm Water Permitting Based on ``No
Exposure'' of Industrial Activities to Storm Water,'' and a separate no
exposure announcement to help operators understand and apply for the
conditional permitting exclusion. The guidance is available in hard
copy from EPA's Water Resource Center. In addition, EPA also sent a
mass mailing alerting all EPA permittees as well as stakeholder groups
to the MSGP-2000 and the no exposure exclusion. To provide the No
Exposure Certification in as many possible places, EPA is publishing
the form and instructions as an addendum to the MSGP-2000.

Section 2.1 Notice of Intent (NOI) Deadlines

Comment: Commenters requested an extension of the 90 day timeframe
for submission of their NOI to 270 days. Commenters said they needed
the additional time to complete their Storm Water Pollution Prevention
Plan (SWPPP), application for an alternate permit, or their endangered
species consultation or adverse impact investigation. A commenter also
requested clarification of coverage during the 90 days between this
publication and their submission of their NOI.
Response: The fact sheet clarifies that SWPPPs are to be prepared
at the time the NOI is submitted. Since most permittees are already
covered under the current MSGP and have a requirement to update their
SWPPP as the need arises, there is no basis for an automatic extension
to 270 days. However, facilities may seek an extension up to 270 days
to develop their SWPPP, or to obtain an alternate permit, on a case-by-
case basis. Similarly, facilities can request an extension up to 270
days if they need to conduct an endangered species consultation or
adverse impact investigation. Permittees covered under the current MSGP
will continue to be covered during the next 90 days as long as they
meet the conditions set forth in the 1995 MSGP.

Section 2.2 Contents of Notice of Intent (NOI)

Comment a: Clarify how to complete the NOI form in situations where
an MS4 has industrial activities and is conveying the pollutants to its
own storm drainage system.
Response a: The intent of Section 2.2.2.5 was to identify the
municipal separate storm sewer system under the assumption that it
would be under different ownership. If there is not a separate owner,
this requirement is unnecessary. This section has been revised to
clarify ``the name of the municipal operator if the discharge is
through a municipal separate storm sewer system under separate ownership.''
Comment b: A commenter questioned whether EPA was requiring or
encouraging permittees to consult FWS and NMFS in making its endangered
species finding.
Response b: The facility is responsible for obtaining the
threatened or endangered species list to make sure that listed specie
or critical habitat is not located in or around the vicinity of your
facility. That list may be obtained by phoning or mailing the FWS or
NMFS, visiting EPA's website, or by some other means. Thus, the
permittee is not required to contact the two agencies if he can meet
his obligation in another manner.
Comment c: Do not include latitude/longitude information on the
NOI.
Response c: EPA requires all regulated facilities to submit
latitude and longitude information. The information is critical in
overseeing compliance with endangered species assessments and
coordinating compliance assistance and enforcement activities across
media programs.

Section 2.3 Use of NOI Form

Comment a: Do not add check boxes related to NHPA and ESA
compliance.
Response a: EPA believes the additional information improves the
Agency's ability to oversee implementation of the permit and compliance
with ESA and NHPA requirements. Because the permittee is already
responsible for conducting the analysis, there is minimal additional
burden associated with indicating on the NOI form how the analysis was
conducted. Therefore, EPA intends to retain this requirement. The NOI
form requires review by the Office of Management and Budget. Until the
new form is approved, permittees should use the current form. EPA's
ability to issue today's permit is contingent upon its compliance with
ESA and NHPA; thus, provisions related to those statutes is part and
parcel of today's permitting action.
Comment b: Commenters supported EPA's proposal to allow facilities
to

[[Page 64780]]

submit NOIs, notices of termination, and discharge monitoring reports
electronically. However, they cautioned that EPA continue to allow hard
copy filing since not all permittees have internet access.
Response b: The final permit retains the requirement of paper
filing for NOIs, NOTs, and DMRs. While EPA believes that electronic
filing will be incorporated as an option in the future, it is currently
not available.

Section 3.3 Compliance with Water Quality Standards

NPDES regulations at 40 CFR 122.44(d)(1)(i) require that the MSGP
ensure compliance with State water quality standards for all discharges
which ``will cause, have the reasonable potential to cause, or
contribute'' to an exceedance of a State standard. With the wide
variety of facilities to be permitted under the MSGP, EPA believes that
reasonable potential to cause or contribute to exceedances of water
quality standards is likely to exist at least for some facilities.
Therefore the MSGP must include appropriate provisions to ensure
compliance with State standards. For general permits, EPA's guidance
document entitled ``General Permit Program Guidance'' (February, 1988)
suggests an overall narrative statement requiring compliance with State
standards to address the fact that the permit will cover a wide variety
of facilities subject to different standards depending on their
location. Part 3.3 of the proposed MSGP included a narrative statement
in accordance with this guidance to ensure compliance with 40 CFR
122.44(d)(1)(i). Part 1.2.3.5 of the proposed MSGP also included an
exclusion from permit coverage for facilities which EPA has determined
may cause or contribute to violations of State standards. Commenters
raised a number of concerns regarding the provisions of the proposed
MSGP related to compliance with State standards. However, after review
of the comments, EPA believes that the provisions of the proposed MSGP
were appropriate and these provisions have been retained in the final
MSGP. Following below are EPA responses to the specific issues raised
by the commenters:
Lack of Coverage for Facilities With Reasonable Potential
Comment a: A commenter was puzzled by the exclusion from coverage
in Part 1.2.3.5 of the proposed MSGP and requested additional
explanation.
Response a: EPA believes that facilities which are shown to cause,
or have the reasonable potential to cause or contribute to exceedances
of State standards may be more appropriately permitted under individual
permits or a separate general permit with alternate permit requirements
designed to ensure compliance with State standards. This is the basis
for the exclusion. Part 1.2.3.5 also provides, however, that MSGP
coverage may be available if the control measures in the storm water
pollution prevention plan (SWPPP) are sufficient to ensure compliance
with State standards.
Comment b: Part 1.2.3.5 of the proposed MSGP could prove burdensome
and could lead to permit backlogs depending on the extent of its use.
Response b: Given the large number of facilities covered by the
MSGP, it is not practical for EPA to individually review the status of
all facilities covered by the MSGP prior to submittal of the NOI. EPA
has developed eligibility criteria for coverage under the MSGP-2000
which should, if applied appropriately by the facility operator, screen
out facilities which have ``reasonable potential'' to exceed a state
standard. In addition, where EPA determines there is a ``reasonable
potential,'' the Director will require the facility to submit an
individual permit or take other appropriate action.
Comment c: MSGP coverage should not be allowed until the absence of
reasonable potential had been demonstrated by the discharger.
Response c: As noted above, EPA does not believe this is practical
for all facilities given the large number of dischargers covered by the
permit. Moreover, as discussed in EPA's ``Interim Permitting Policy for
Water Quality-Based Effluent Limitations in Storm Water Permits'' (61
FR 43761, November 26, 1996), there will likely be circumstances where
inadequate information is available to perform the reasonable potential
analysis.

Are Discharges with Reasonable Potential a Permit Violation?

Comment d: Several commenters objected to Part 3.3 of the proposed
MSGP which indicated that discharges which have occurred would be
violations of the MSGP if they are later shown to have the reasonable
potential to cause or contribute to exceedances of State standards.
Response d: EPA believes that such discharges are appropriately
characterized by the MSGP as violations. The narrative statement in the
MSGP requiring compliance with water quality standards in effect
incorporates into the permit all numeric effluent limitations which are
necessary to ensure compliance with State standards. When a discharge
is shown to have reasonable potential, this implies that discharges are
occurring which would exceed the permit limits needed to ensure
compliance with State standards. Since the narrative statement
incorporates all limits needed to ensure compliance with State
standards, the discharges are appropriately characterized as violations
of the permit.

Process for Terminating Coverage Under the MSGP

Comment e: Several commenters expressed concern regarding the
process for terminating coverage under the MSGP and ensuring due
process for dischargers to contest such actions by EPA.
Response e: EPA believes that the MSGP does ensure due process for
dischargers. Part 9.12 of the MSGP provides that EPA may require an
individual permit application from a discharger, or require the
discharger to seek coverage under an alternate general permit. If an
individual permit application were required, a draft permit would be
prepared and a full opportunity would be provided to the discharger in
accordance with 40 CFR Part 124 to comment on the draft permit and
contest any final determination. Further, any alternate general permit
would provide (in accordance with 40 CFR 122.28(b)(3)(iii)) that the
discharger could seek coverage under an individual permit rather than
the alternate general permit. Such a request would also be processed in
accordance with the procedures at 40 CFR Part 124.
Comment f: A number of commenters also asked whether a notice of
violation of Part 3.3 of the MSGP for violations of State water quality
standards would be in writing.
Response f: Dischargers would be notified in writing by EPA of any
violation of Part 3.3.

Permit as a Shield Concerns

Comment g: Section 402(k) of the Clean Water Act shields permittees
from the requirements of Part 3.3 of the MSGP to comply with water
quality standards.
Response g: EPA disagrees with the commenters on this matter.
Section 402(k) provides that compliance with an NPDES permit is
considered to be compliance, for purposes of section 309 and 505
enforcement, with sections 301, 302, 306, 307 and 403 of the Clean
Water Act. However, the violations which are envisioned by Part 3.3 of
the MSGP would be violations of an NPDES permit itself, i.e., the water
quality-based effluent limitations which are

[[Page 64781]]

incorporated into the MSGP by virtue of the narrative statement.
Section 402(k) does not provide a shield for such violations.

Concerns about Applying State Water Quality Standards to Storm Water

Comment h: Water quality standards cannot apply to storm water
discharges since special wet weather standards have not been developed
to address episodic events.
Response h: EPA disagrees that State water quality standards cannot
apply in the absence of special wet weather standards. Section
402(p)(3)(A) of the Clean Water Act specifically requires that
industrial storm water dischargers comply with State water quality
standards. EPA has recognized, however, the difficulties in developing
appropriate water quality-based effluent limitations for storm water
discharges. In response to concerns such as those raised by the
commenter, EPA has developed an ``Interim Permitting Policy for Water
Quality-Based Effluent Limitations in Storm Water Permits' (61 FR
43761, November 26, 1996). Where numeric water quality-based effluent
limitations are infeasible (due for example to inadequate information
on which to base the limitations), best management practices (BMPs)
such as those in the SWPPP would serve as the water quality-based
effluent limitations.
Comment i: Clarify whether mixing zones would apply to the storm
water discharges.
Response i: Mixing zones would apply to the extent that State water
quality standards provide for their use.

Required Actions if Violations of Standards Occur

Comment j: A commenter was unclear concerning the modifications of
the SWPPP that would be required by Part 3.3 of the MSGP if violations
of State water quality standards occur.
Response j: The SWPPP must be modified to include additional BMPs
to the extent necessary to prevent future violations.
Comment k: Clarify who would determine the additional control
measures that would be required by Part 3.3 of the MSGP.
Response k: The discharger would at least initially be responsible
for determining the additional control measures. However, Part 4.10 of
the MSGP also provides that EPA may require modifications of the SWPPP
if it proves to be inadequate.

Can a Reasonable Potential Analysis Occur at Any Time During the Permit
Term?

Comment l: Part 3.3 of the MSGP should not require a reasonable
potential analysis at any time during the term of the permit.
Response l: The information to support a reasonable potential
determination would be based on additional information that becomes
available concerning a particular discharge (from monitoring results,
for example). As such, the permit appropriately provides that a
reasonable potential analysis (possibly leading to an individual permit
or separate general permit) may be required at such a time.
Comment m: Discharges of a pollutant which increase during the term
of the permit should not be considered a permit violation.
Response m: EPA disagrees with the commenter on this issue. The
narrative statement in Part 3.3 of the MSGP requires that dischargers
comply with all State water quality standards throughout the term of
the permit. Dischargers must ensure that, if there are increases in the
discharges of a particular pollutant, the increases are not sufficient
to cause or contribute to exceedances of water quality standards.

Questions Regarding the Benchmark Concentrations

Comment n: Part 3.3 of the proposed MSGP would undermine EPA's use
of the benchmark values in the MSGP.
Response n: EPA disagrees with the commenters in this regard. The
benchmark values are concentrations which are used to evaluate whether
a generally effective SWPPP is being implemented. The SWPPP is required
to ensure compliance with the technology-based discharge requirements
of the Clean Water Act. Exceedance of a benchmark value is not a permit
violation. However, if a permittee complies with the benchmarks, the
permittee is eligible for the monitoring waiver in year 4 of the term
of the permit and this provides an incentive to implement an effective
SWPPP. Part 3.3 of the MSGP is required to ensure compliance with the
water quality-based requirements of the Clean Water Act, which are in
addition to the technology-based requirements. Part 3.3 of the MSGP
does not undermine the benchmarks. Part 3.3 is simply a separate
requirement of the Clean Water Act which must be included in the permit
in addition to the technology-based requirements.

General Comment on Water Quality Standards Requirements

Comment o: One commenter lodged a general objection to Part 3.3 of
the proposed MSGP, but did not elaborate on specific concerns.
Response o: As discussed above, EPA believes that Part 3.3 is
appropriate and necessary to ensure compliance with State water quality
standards. As such, Part 3.3 was retained in the final MSGP.

Section 4.1 Storm Water Pollution Prevention Plan (SWPPP) Requirements

Comment a: EPA should not measure progress solely on the number of
BMPs applied.
Response a: As stated, EPA's intention in requiring the
comprehensive site compliance evaluation is to determine the
effectiveness of BMPs in use at the site, and to assess compliance with
the terms and conditions of the permit. Additional new BMPs are not
prescribed as part of this requirement; the options to include BMPs to
replace those which are not working appropriately, or to augment
existing BMPs to ensure better performance, rests solely with the
facility operator, based on the findings of the compliance evaluation.
Comment b: Clarify the frequency of training required.
Response b: Some industrial sectors covered by this permit are
required to provide training at least once per year. In other sectors,
it is left to the discretion of the operator. EPA's fact sheet
recommends that facilities conduct employee training annually at a
minimum, and acknowledges that, for some facilities, a more frequent
training schedule may be appropriate to ensure that personnel at all
levels of responsibility are informed of the components and goals of
the site's SWPPP.
Comment c: Clarify the term ``locally available.''
Response c: EPA intends the term ``locally available'' to mean a
facility office which need not actually be located on-site, but co-
located with other facility operations. It is not necessary for a
permittee to maintain a local presence near an unstaffed site for the
purposes of maintaining availability of the SWPPP.
Comment d: Fourteen days is an unrealistic timeframe for modifying
a SWPPP in response to a discharge of a reportable quantity of oil.
Response d: EPA does not consider the requirement to revise the
SWPPP within 14 days after a discharge of a reportable quantity of oil
to be unrealistic. Changes to accommodate a

[[Page 64782]]

description of the release, date and circumstances of the release, as
well as a description of the actions taken to address the problem and
any necessary changes to the BMPs to prevent future releases are
inherently necessary to prevent water quality degradation.
Comment e: It is standard practice to keep a copy of their SWPPPs
with their permit and, therefore, there is no objection to this
requirement.
Response e: EPA acknowledges that many industrial facilities
already keep a copy of the storm water permit with their SWPPP, and the
Agency is formalizing that practice as a requirement of the permit for
all facilities.

Section 4.2 Contents of Plan

Comment a: A commenter believed EPA was requiring velocity
dissipation devices to minimize erosion due to flow velocity.
Response a: EPA's intention is to require facilities to evaluate
the need for velocity dissipation devices where it is necessary to
minimize erosion due to flow velocity. Facilities should use their best
judgment when considering if velocity dissipation devices are needed.
The language in the permit has been clarified.
Comment b: Specify a set of minimum management practices for
coverage under the permit.
Response b: Due to the variety of industries covered by the Multi-
Sector General Permit, there is no ``minimum'' list of best management
practices that would suitably address the multiple situations found at
different industrial sites. EPA considers it sufficient to outline
minimum criteria that each facility operator must consider to minimize
discharges from their property, and allow facility operators to
identify and implement BMPs that are appropriate for their site.
Comment c: Do not require the SWPPP to identify oil spills or leaks
below reportable quantities. Only those sites that have not been
cleaned up to appropriate levels should be included in the site
description and shown on the site map.
Comment d: EPA has not changed the basic intent of this permit
requirement: a facility must keep a record of significant spills or
leaks of both hazardous substances or oil and, for releases in excess
of reportable quantities under 40 CFR Parts 117 or 302, revise its
pollution prevention plan as necessary to prevent the reoccurrence of
such releases. A spill or leak may not meet the threshold of a
``reportable quantity'' but may still be sufficiently significant to
cause water quality impairment, and therefore should be acknowledged
and mitigated by the permittee. EPA does not intend that ``reportable
quantity'' defines the minimum amount of a substance which should be
appropriately managed. In regards to including previous spill and/or
leak areas in the site map and associated descriptions, the Agency
views the inclusion of all areas where spills have occurred over the
last three years from the date of NOI submittal as important
information which may be useful in assessing future risks.
Comment d: The provision prohibiting discharge of ``solid
materials'' is too broad and should be eliminated.
Response d: EPA intends the reference to ``solid materials,
including floating debris'' and ``Off-site tracking of raw, final, or
waste materials or sediment, and the generation of dust'' as having the
generally accepted plain language meanings, and that facility operators
should use their best professional judgment in applying this
requirement to their discharge. The reference is not necessarily meant
to apply in particular to suspended soil. EPA has purposefully allowed
for reasonable flexibility in allowing each facility to determine
whether ``solid materials,'' ``floating debris'' and/or ``dust'' are a
component of their storm water discharge. The Agency acknowledges that
many areas have state or local ordinances prohibiting the off-site
tracking and generation of dust; therefore, this requirement does not
pose a hardship on facility operators. While not prohibiting the
discharge of waters containing soils, the permit still requires that
discharges must comply with state/local water quality standards.
Comment e: The requirement for ``routine inspections'' and
``records of inspections'' are too broad.
Response e: EPA acknowledges that most industrial facilities
conduct regular inspections of plant conditions. As discussed in Part
4.2.7.1.5 of the permit, facility operators must explicitly outline in
the SWPPP the frequency of regular inspections at their facility which
will incorporate inspections of industrial activities or materials that
are exposed to storm water. Records of these specific storm water
inspections, along with records of any followup actions taken as a
result of these inspections, must be kept with the SWPPP. This
facility-specific schedule of periodic inspections is what EPA is
referring to as ``routine facility inspections.''
Comment f: An evaluation of groundwater impacts or concerns is
beyond the scope of a stormwater pollution prevention plan.
Response f: In some cases, groundwater beneath a facility may be
hydrologically connected to surface waters. EPA's intent for including
an evaluation of impacts to groundwater when considering appropriate
BMPs is to ensure that facility operators are fully cognizant of the
hydrology of their area, and have evaluated any appropriate BMPs in the
event that such a situation exists for their property. If there are no
possible impacts to groundwater, this fact should be acknowledged in
the SWPPP.

Section 4.4 Non-Storm Water Discharges

Comment a: Include swimming pool discharges as an allowable storm
water discharge.
Response a: EPA does not include swimming pool discharge as an
allowable non-storm water discharge in the Multi-Sector General Permit,
as this is a general permit to cover storm water discharges from
industrial activity. The Agency is unclear as to how many industrial
facilities have swimming pools that would necessitate this specific
exemption. The inclusion of nonchlorinated swimming pool discharges as
an allowable non-storm water discharge will be better suited to the
upcoming EPA Small Multiple Separate Storm Sewer General Permit, which
will be available by December 2002.
Comment b: The permit should allow for case-by-case determinations
for inclusion of de minimus non stormwater sources.
Response b: By its very nature, a general permit is meant to cover
many similar discharges from a variety of similar sources. Case-by-case
determinations for de minimus non-stormwater discharges would be
extremely time-intensive, and it is not possible to provide for such
individual determinations in the context of a general permit. Specific
examples of de minimus discharges were not provided by the commenter;
therefore, the Agency is not inclined to include such a provision at
this time.
Comment c: Delete ``drinking fountain water:'' from Section
1.2.2.2.3 and cite only ``potable water including water line
flushings.''
Response c: EPA agrees with the issues presented by the commenter,
and that the term ``drinking fountain water,'' in itself, is imprecise.
Both the draft MSGP fact sheet and permit specifically authorize
potable water as an allowable non-storm water discharge. The

[[Page 64783]]

``drinking fountain water'' language has been deleted.

Section 4.7 Copy of Permit Requirements

Comment: Recommend electronic website access in lieu of paper copy
of permit.
Response: The new requirement that a hard copy of the Multi-Sector
General Permit be kept with a facility's Storm Water Pollution
Prevention Plan is intended to ensure that the permit requirements are
easily and readily available to all facility staff who are or may be
responsible for implementing the provisions of the permit. Internet
access may not be available to staff in all situations; therefore, for
ease of reference, EPA is requiring that at least one copy of the
permit be retained along with the SWPPP. The sections referring to
EPA's acceptance of the electronic medium is contingent, in both cases
cited by the commenter, upon the future viability of electronic
submittal of NOIs and DMRs to the Agency.

Section 4.9 Timeline

Comment a: The fact sheet and permit need to provide consistent
timeframes for SWPPP revisions.
Response a: The fact sheet and permit language were consistent on
revising the SWPPP within 14 days of the site evaluation, but were
somewhat confusing on how long the permittee had to implement the
revisions. To clarify this time period, EPA has revised Part 4.9.3 of
the permit to state: ``If existing BMPs need to be modified or if
additional BMPs are necessary, implementation must be completed before
the next anticipated storm event, or not more than 12 weeks after
completion of the comprehensive site evaluation.''
Comment b: Thirty days to correct deficiencies in the SWPPP
following notification by the Director is insufficient.
Response b: EPA intends for corrections to the Storm Water
Pollution Prevention Plan to be accomplished in a timely manner,
particularly when deficiencies are identified formally by the Director.
The Agency feels that thirty days, as outlined in the existing permit
language, is a reasonable amount of time for such changes to be made;
if revisions are significant, the permittee may request, and the
Director can provide, additional time for revisions to be accomplished.
Comment c: Fourteen days to modify a SWPPP is insufficient.
Response c: The Agency feels that revising the Storm Water
Pollution Prevention Plan appropriately to address deficiencies within
14 days is a reasonable timeframe in which to address changes
administratively; additional time is provided to actually put those
revisions into place.
Comment d: The SWPPP must be completed and in place prior to
issuance of the permit.
Response d: Part 4.1 of the permit states that a SWPPP must be
prepared for the facility before submitting a Notice of Intent for
permit coverage. EPA's issuance of the MSGP-2000 does not automatically
confer coverage to permittees; therefore, EPA feels the requirement
that a site-specific SWPPP be in place for the facility operations
prior to seeking coverage by way of the submittal of a NOI is
sufficient to prevent environmental degradation.

Section 4.12 Additional Requirement: EPCRA Section 313 Reporting

Comment: Many commenters supported removal of EPCRA Section 313
reporting requirements from the permit. Two commenters objected to
identifying areas with pollutants that must be reported under EPCRA
Section 313 and to develop appropriate storm water controls for these
areas.
Response: EPA acknowledges the general support for revisions to
this section. The intent of these modifications is to eliminate the
redundant requirements of the existing MSGP for permittees subject to
reporting requirements under Section 313 of EPCRA, which includes the
20+ categories of Toxic Release Inventory chemicals. The Agency
believes that the MSGP-2000 places no additional burden on facility
operators with TRI chemicals. Identification of EPCRA 313 chemicals in
the SWPPP acknowledges that these chemicals are pollutants of concern.
Facilities with any of these pollutants need to develop appropriate
storm water controls to contain them. As noted in the fact sheet, EPA
believes these concerns have been addressed through existing state and
federal requirements which can be referenced in the SWPPP.

Section 4.13 Public Availability for Review

Comment a: The public should be able to obtain access to and
comment upon a SWPPP and ``no exposure'' claim before they are
finalized.
Response a: EPA has, in response to this comment, included a
provision in the final permit requiring facility operators to make a
hard copy of their SWPPP available to the public when requested in
writing. EPA believes this requirement is an acceptable compromise
between the facility operator's concerns about having members of the
public at their site and the need of the public to understand potential
impacts on their environment. EPA does not receive SWPPPs routinely,
and, therefore, cannot make them available at its offices or provide
them to local government offices. As with the previous MSGP, members of
the public have the option of contacting the NOI Center or the Regional
EPA Storm Water Coordinators directly to inquire about a facility's
permit status.
EPA does not intend to require public comment on SWPPPs, nor
require public hearings, because SWPPPs are intended to be modified as
necessary to address changes at the facility or when periodic
inspections indicate that a portion of the SWPPP is proving to be
ineffective. Requirements for public comment and public hearings would
delay needed modifications to, not to mention development of, the
SWPPP, be burdensome and serve as disincentives to plan updates.
At any time the Agency can conclude that a facility is no longer
eligible for coverage under a general permit and require the facility
to apply for a general permit. In that event, there would be
significant opportunity for public input in the decision-making
process.
Comment b: The following should be available in paper copy and on
the web: NOI, SWPPP, and ``no exposure'' certification.
Response b: EPA has found that having a central location for
processing NOIs is an efficient and effective way of managing the
tremendous amount of data which the Storm Water program generates. Very
shortly, members of the public will be able to access information from
the NOI database online. The NOI database contains facility
information, including the type of industrial activity taking place,
facility contact information, and receiving water body information.
Also available online will be information on facilities that have
submitted ``no exposure certifications.'' Regarding SWPPPs, EPA does
not receive them routinely and, therefore, cannot make them available
on-line. EPA has, in response to this comment, included a provision in
the final permit requiring facility operators to make a hard copy of
their SWPPP available to the public when requested in writing. EPA
believes this requirement is an acceptable compromise between the
facility operator's concerns about having members of the public at
their site and the need of the public to understand potential impacts
on their environment.

[[Page 64784]]

Section 5.1 Types of Monitoring Requirements and Limitations

Comment a: A commenter requested language clarification for the
first paragraph under Part 5.1, Quarterly Visual Monitoring.
Response a: Quarterly visual monitoring is required for all
permittees covered under the MSGP. The visual inspection must cover all
outfalls at the facility from which there are storm water discharges
associated with industrial activity.
Comment b: A commenter indicated that Part 5.1.1.4 was clear
regarding the visual monitoring waiver for inactive and unstaffed
sites. However, it was unclear if a similar waiver for benchmark
monitoring applies to inactive and unstaffed sites.
Response b: EPA has clarified in Part 5 that a permittee may
exercise a waiver for benchmark monitoring at unstaffed and inactive
sites.

Section 5.3 General Monitoring Waivers

Comment a: Commenters supported the adverse sampling condition
waiver, as long as the permittee doubles sampling during the next event
or eliminates the substitute sampling requirement for areas with
extended frozen conditions.
Response a: EPA has decided to keep this temporary waiver, since
the main purpose of this specific waiver is to allow the permittees the
opportunity to take samples under no adverse nor threatening weather
conditions.
Comment b: Allow permittees to waive benchmark monitoring in years
2 and 4 of the MSGP-2000 with the result of the 1995-MSGP; waive
difficult logistical conditions or location access similar to those for
unstaffed/inactive facilities; and impractical sample collection at
large facilities.
Response b: Under Section 402 of the CWA, EPA is required to issue
permits which apply and ensure compliance with any applicable
requirements of sections 301, 302, 306, 307, and 403. Since these
permits are issued with fixed terms not exceeding five (5) years, EPA
needs to ensure that permittees continue to comply with applicable
requirements. EPA believes that benchmark monitoring is not overly
burdensome and provides useful information to the permittee and the
Agency. Therefore, EPA will require permittees covered under the
reissued MSGP to ensure continued compliance with permit conditions and
requirements. In addition, EPA has determined that the general
monitoring waivers provided in the previous permit are adequate, and
that additional waivers are not needed. With regard to problems
facilities encounter when monitoring their storm water discharges, such
as difficult logistical conditions, access to discharge locations or
impractical sample collection at large facilities, EPA recommends
permittees review the ``NPDES Storm Water Sampling Guidance Document''
which suggest solutions to these sampling problems.

Section 6.E Sector E--Glass, Clay, Cement, Concrete and Gypsum
Products

Comment a: Separate the concrete pipe manufacturing from the
cement, ready mixed and concrete block manufacturing sector.
Response a: Based on the characterization of the concrete pipe
manufacturing industry and the cement, ready mixed and concrete block
manufacturing industry, EPA has determined that the two industries are
similar and, thus, has retained the industrial sectors as described in
the 1995 permit.
Comment b: Section 6.E.3.1 of the draft permit was not reflective
of the September 30, 1998 modification.
Response b: The commenter is correct. The final permit has been
changed to reflect the September 30, 1998 modification which removed
the limitations of coverage for various industries. Paragraph 6.E.3 has
been removed and the remaining paragraphs have been renumbered
accordingly.

Section 6.F Sector F--Primary Metals

Comment a: Do not propose any new BMPs for the steel industry in
the MSGP-2000.
Response a: Similarly to the 1995 MSGP, the MSGP-2000 prefers the
implementation of structural and non-structural BMPs for stormwater
management from Primary Metals facilities. It is up to the individual
operators to decide which BMPs most effectively meet their needs. This
does not preclude the use of additional or new technologies should they
be found to be more effective in any given application.
Comment b: The BMPs provided at Parts 6.F.3.2 and 6.F.3.3 omit the
most obvious qualifier, which is that inventories of exposed material
and housekeeping should be mandated by the MSGP only where the exposed
materials have a potential to contact storm water that is discharged
from a point source to a water of the United States. In many cases, the
types of materials and activities discussed in the above referenced
parts occur in areas where precipitation is collected and contained,
and is not discharged. Thus, site inventories and BAT practices
discussed in these parts are not relevant except in areas where they
affect storm water discharges authorized by the MSGP. Parts 6.F.3.2 and
6.F.3.3 should be clarified (similarly to Part 6.F.3.1) with a
statement that these activities are required only in areas where such
activities could result in a discharge of pollutants to waters of the
United States.
Response b: One of the underlying premises of the MSGP is that if
there is a potential for contact between storm water and environmental
contaminants, then the facility should apply for coverage under the
MSGP. If there is no potential for contact, the facility may be able to
submit a ``no exposure'' certification form, and not be required to
obtain permit coverage. Where there is a potential for contact between
storm water and industrial activities and/or materials, then the
operator needs to obtain permit coverage and take appropriate measures
to mitigate the discharge of pollutants.
Comment c: Part 6.F.3.4 includes a requirement for inspections
performed under the 2000-MSGP to, among other things, evaluate air
pollution control equipment. This activity does not belong under the
MSGP. It is a Clean Air Act requirement and an activity performed under
each facility's Clean Air Act permit. Such inspections under the MSGP
are redundant, inappropriate and extend EPA's CWA authority into the
CAA. Inspections of air pollution control equipment should not be a
component of any SWPPP or compliance certification under the CWA.
Response c: EPA understands why inspection requirements which
routinely fall under the purview of one environmental program (in this
case the Air Program) would appear inappropriate under another
environmental program (in this case the Water Program). However, if one
looks at the potential sources of pollution at primary metals
facilities, one will soon discover that one of the principal sources of
contamination is from the air pollution control devices. The purpose of
the storm water regulations is to keep storm water from coming into
contact with any contaminants, regardless of the environmental media
from which it arose. If inspections are routinely conducted at a
facility pursuant to one environmental statute, that same inspection
will generally be accepted by another program. For example, if the
facility routinely inspects its air pollution control devices as a
requirement of its CAA permit, that

[[Page 64785]]

same inspection, with the possibility of a few additional observations,
e.g., to see if there is any evidence of run off, should also be
accepted as part of the SWPPP. The SWPPP can cross reference inspection
protocols for the CAA permit. Thus, EPA does not agree with the
commenter that these requirements are either redundant, inappropriate
or extend EPA authority.

Section 6.G. Sector G --Metal Mining (Ore Mining and Dressing)

Comment a: Include Table G-4, published in the August 7, 1998
modifications, in MSGP-2000. Also, table titles in this section are
confusing since they appear to imply that effluent guideline
limitations apply to waste rock and overburden piles.
Response a: We have included the revised table G-4 from the August
7, 1998 modification in the fact sheet for today's permit. The titles
of tables G-1 and G-2 are consistent with the titles in the other
sectors of the final permit. All monitoring tables in Part 6 of the
permit are titled ``SECTOR-SPECIFIC NUMERIC LIMITATIONS AND BENCHMARK
MONITORING.'' The Agency doesn't not believe that this title is
misleading because each table contains a column labeled ``Numeric
Limitation'' which either contains a numerical value or is blank. For
those Sectors where there are no values listed in the numeric
limitation column it is clear that numeric limitations do not apply.
EPA recognizes that benchmark concentrations are not effluent
limitations and is provided specific language in the permit to that
effect.
Comment b: The commenter opposes EPA's disallowance of sampling
waivers from monitoring requirements for waste rock and overburden
piles. Another commenter argued that another waiver based on ``not
present or no exposure'' had also been deleted. A third commenter noted
that monitoring requirements were also inconsistent with the 1998
permit modifications.
Response b: The restriction on sampling waivers was not intended to
exclude the ``Adverse Climatic Conditions Waiver'' in Part 5.3.1 of the
permit. The final permit has been revised to correct this error. Also,
Part 6.G.7.2 has been modified to reflect that the monitoring
requirements only apply to discharges from active ore mining and
dressing facilities and that these requirements remain unchanged from
the 1998 permit modification. The second waiver in Part 5.3 which is
based on ``not present or no exposure'' was not part of the August 1998
notice, and was not intended for sector G facilities.
Comment c: The limitation on coverage for adit drainage and
contaminated springs or seeps should be modified to exclude only those
that do not result from precipitation events. The proposed
Certification of Discharge language is confusing since it implies an
obligation for testing or evaluation of mining-related discharges that
are composed entirely of non-storm water covered by an NPDES permit.
Response c: Adit drainage and contaminated springs and seeps are
discharges that originate below the surface of the ground. Often they
discharge during dry periods and, while in some instances these flows
may increase in response to a storm event, they may continue to flow
well after the precipitation has ended. Therefore, EPA has determined
that the restriction (i.e., prohibition) for MSGP coverage of
discharges from adit drainage, contaminated springs and seeps should
remain as proposed.
The ``Certification of Discharge Testing'' language has been
modified to clarify that certification must be provided to show that
any mining-related discharge has been ``tested or evaluated for the
presence of non-storm water discharges.'' Additional wording has been
added to Part 6.G.6.1.6.6 to make it consistent with the language in
the 1995 MSGP.
Comment d: Provide guidance in Section 6.G.6.1.6.6 on what type of
test should be performed.
Response d: The language has been modified to allow for a
certification based on ``tested or evaluated'' information. Additional
wording has been added to Part 6.G.6.1.6.6 to make it consistent with
the language in the 1995 MSGP.
Comment e: The definition of ``reclamation phase'' is inconsistent
with most state programs.
Response e: The definition of the three general phases of mining
was taken from the fact sheet to the 1995 MSGP. The intent was to
recognize that ``mining'' is comprised of several distinct activities,
not to set a standard for each phase. EPA acknowledges that reclamation
requirements are typically set by state programs, and therefore the
permit language defining the reclamation phase has been modified to
reflect other post-mining land uses.
Comment f: In reformatting the permit language, EPA introduced new
requirements which are inconsistent with the settlement EPA reached
with NMA in 1998.
Response f: The draft MSGP-2000 intended to incorporate all the
requirements from the 1998 notice resulting from the settlement with
NMA. However, in making the changes and converting to a more
``readable'' format some unintended errors occurred. The revisions to
the monitoring requirements have been made so the final permit language
is consistent with the 1998 Federal Register publication (63 FR 42534,
Aug 7, 1998).
Comment g: Delete the phrase ``directly or indirectly'' from
coverage of ``storm water discharges that have come into contact
(directly or indirectly) with any overburden, raw material,
intermediate product* * *'' since it is inconsistent with prior
versions of the permit.
Response g: The storm water regulations (Section
122.25(b)(14)(iii)) require permit coverage for ``facilities that
discharge storm water contaminated by contact with or that has come
into contact with, any overburden, raw material, intermediate products*
* *'' When revisions were made to the draft MSGP 2000 language to make
the permit more ``readable,'' some of the words were changed. In order
to be consistent with the storm water regulations, the permit language
has been revised. The words ``come into contact (directly or
indirectly)'' have been deleted and replaced with ``contaminated by
contact or that has come into contact.''
Comment h: EPA was incorrect in stating that all facilities
permitted in this sector are ``no discharge'' facilities.
Response h: The monitoring discussion in the Fact Sheet to the
permit is a summary of the data available at the time the draft permit
was published for public comment. The main focus of the summary was on
data from the second year of permit coverage. Of those sector G
facilities that submitted information in year 2 of the permit none of
them reported a discharge. The 1998 MSGP modification which reflected
the settlement with NMA and added monitoring requirements for sector G
was much later in the permit term. The final fact sheet language has
been changed to recognize the later data and discharge status of sector
G facilities covered by the permit.
Comment i: Water technically qualifying as mine drainage but which
meets all applicable surface water quality standards should be approved
for use in lieu of fresh water for dust control on roads at mine sites.
Response i: The quality of the mine drainage can change from source
to source and over time within the same mine. The MSGP would need to
specify a process (e.g., monitoring frequency) to ensure that the
quality of the mine

[[Page 64786]]

drainage is protective of water quality. This type of facility specific
considerations and potential monitoring requirements would be better
addressed under an individual permit issued to the facility.

Sections 6.G and 6.J Construction Requirements for Sector G--Metal
Mining and Sector J--Mineral Mining

Comment a: Commenters questioned why EPA was requiring coverage
under a construction general permit for earth disturbing activities
during the ``exploration and construction phase'' of a mining
operation.
Response a: This requirement was originally contained in the 1995
MSGP Fact Sheet for Sector J (it was inadvertently not duplicated in
the metal and coal mining [Sector G] sectors). It therefore represents
a clarification or technical correction to the original MSGP. To
clarify the applicability of the MSGP regarding construction activity
at metal mining sites and to make metal mining requirements consistent
with mineral mining provisions (Sector J), Sector G has been modified
to indicate that earth-disturbing activities occurring in the
``exploration and construction phase'' of a mining operation must be
covered under EPA's Construction General Permit (63 FR 7858, February
17, 1998) or under an individual permit if the area disturbed is one
acre or more. Earth-disturbing activities during exploration/
construction affecting less than one acre must be covered under the
MSGP-2000. If permittees then opt to actively mine the site they are
required to transition to the MSGP-2000 (they should terminate their
coverage under the CGP, but there is no requirement to do so). This
procedure removes commenters' ``dual-permit requirement'' fear. Once in
the active phase, any subsequent mine enlargement would be covered
under the MSGP-2000. All phases of a mining operation must be covered
which includes the ``reclamation phase.'' EPA believes the appropriate
level of environmental protection for initial land-disturbing mining
activities is a construction permit. SWPPP requirements under a
construction permit are more effective for the often temporary
conditions found during the initial phase versus that which would be
appropriate for a more permanent mining operation. Many of the BMPs and
other SWPPP requirements of the Construction General Permit could be
incorporated in the MSGP-2000 SWPPP, thereby minimizing any duplicative
efforts.
Comment b: For Sector J for Region 9, the proposed MSGP only
authorized mine dewatering discharges from crushed stone, construction
sand and gravel, and industrial sand mines in Arizona. For Regions 1,
2, 6, and 10, coverage was proposed throughout the areas of these
regions covered by the MSGP. Expressions of interest in MSGP coverage
for these discharges have been received for other areas, such as Indian
country in Nevada and California.
Response b: For consistency with the other regions, coverage for
the discharges has been extended throughout the areas of Regions 3, 8
and 9 covered by the permit, provided the dischargers meet all other
permit eligibility requirements.

Section 6.I Sector I--Oil and Gas Extraction

Comment: One commenter expressed concern that while refineries were
covered under Sector I--Oil and Gas Extraction, refining was not
usually considered ``oil and gas extraction'' and the title of Sector I
could thus cause refinery operators to overlook permit conditions that
could apply to them.
Response: EPA welcomes this suggestion to make the permit easier to
use and the title for Sector I has been changed to ``Oil and Gas
Extraction and Refining'' in Table 1-1 and in Part 6.I. Note however,
that any storm water at a refinery that is subject to storm water
effluent limitation guidelines at 40 CFR 419 is not eligible for permit
coverage.

Section 6.R Sector R--Ship and Boat Building or Repair Yards

Comment: One commenter requested that the provisions of part
6.R.4.3.1. be clarified to note that pressure washing to remove paint
would require a separate NPDES permit.
Response: EPA agrees that if pressure washing occurs to remove
paint, the discharge of that wash water would require separate NPDES
permit coverage. EPA also intends for the discharge of wash waters
removing marine growth to be permitted separately. The source of the
discharge is not storm water and, as a general rule, the MSGP only
authorizes the discharge of storm water. The non-storm water discharges
that are authorized by the MSGP are a specific list found in Part
1.2.2.2. of the permit and the list does not include pressure wash
waters.

Section 6.S Sector S--Air Transportation

Comment: Commenters had concerns regarding the execution of site
compliance evaluations and inspections of deicing areas. They also
requested EPA to limit the inspection obligation to once per month
during periods of deicing operations.
Response: The MSGP-2000 has been clarified to state that compliance
evaluations shall be conducted during a period when deicing activities
are likely to occur (vs. a month when deicing activities would be
atypical or during an extended heat wave), not necessarily during an
actual storm or when intense deicing activities are occurring. This
requirement is not seen as onerous, as EPA believes that most weather
conditions can be reasonably anticipated and the evaluation can be
planned for. EPA generally agrees that regularly scheduled, monthly
inspections of deicing areas during the deicing season (e.g., October
through April) are sufficient at airports with highly effective,
rigorously implemented SWPPPs. However, if unusually large amounts of
deicing fluids are being applied, spilled or discharged, weekly
inspections should be conducted and the Director may specifically
require such weekly inspections. In addition, personnel who participate
in deicing activities or work in these areas should, as the need
arises, inform the monthly inspectors of any conditions or incidents
constituting an environmental threat, especially those needing
immediate attention. EPA requires permittees to record, to the best of
their ability, the quantity of all deicing chemicals applied on a
monthly basis (not just glycols and urea, e.g., potassium acetate), as
discharges of large quantities of these chemicals can have an adverse
impact on receiving waters. The capability to record usage of chemicals
should not depend on the type of chemical used. EPA never intended to
provide a comprehensive list of technologies and BMP options for
airport operators to consider, nor to provide a discussion of the
relative merits of each. EPA's discussion was simply an introduction of
the many options available and was intended to stimulate thought on the
variety of BMPs available. EPA intends that storm water personnel use
their best professional judgment to select site-appropriate measures
for inclusion in their SWPPPs. For a more thorough source of
information on deicing fluid control and airport deicing operations in
general, stakeholders can check the EPA publication ``Preliminary Data
Summary, Airport Deicing Operations'' at http://www.epa.gov/ost/guide/
airport/index.html.

Section 6.T Sector T--Treatment Works

Comment: Clarify that treatment works smaller than 1.0 MGD are not

[[Page 64787]]

defined as industrial activities and, therefore, are not subject to the
permit.
Response: The final permit language has been modified to be
consistent with the industrial definition of Sec. 122.26(b)(14)(ix).
The requirements of Sector T are intended to apply only to those
treatment works with a design flow of 1.0 MGD or more, or required to
have an approved pretreatment program.

Section 8 Retention of Records

Comment: Clarify the Retention of Records language.
Response: EPA has clarified the Retention of Records language used
in this permit. Part 8.1 states that the permittee will retain, for
three (3) years after the permit expires or is terminated, the SWPPP
and all documents/reports needed to complete their Notice of Intent
form. In addition, Part 9.16.2.1 addresses the retention of records for
the permit monitoring requirements for three (3) years from the date of
sample, measurement, evaluation or inspection, or report. Permittees
are required to submit Discharge Monitoring Reports for compliance and/
or analytical monitoring.

Section 9 Standard Permit Conditions

Comment a: Several comments were received on Part 9.12.1 for
requiring coverage under an individual permit or an alternative general
permit. Commenters suggest that the permittee be allowed to appeal a
Director's decision; provide for determination of non eligibility and
semblance of surety available by a permittee who demonstrates
eligibility and compliance with the MSGP; and authorize automatic
transfer provided all storm water permitting conditions and obligations
are met.
Response a: EPA may modify, revoke and reissue, or terminate a
permit during its term. Causes for modification, revocation and
reissuance, and termination are set forth in 40 CFR Sec. 122.62 and
122.64. Specific causes may include: noncompliance by the permittee
with any condition of the permit; failure in the application or during
the permit issuance process to disclose fully all relevant facts;
determination that the permitted discharge endangers human health or
the environment and can only be regulated to acceptable levels by
permit modification or termination; or there is a change in any
condition that requires either a temporary or a permanent reduction or
elimination of any discharges controlled by the permit. In addition,
EPA recently published a final rule which revises certain regulations
pertaining to the NPDES program, including the procedures for appealing
an EPA determination on NPDES permits. See Amendments to Streamline the
National Pollutant Discharge Elimination System Program Regulations;
Round II, 65 Fed. Reg. 30886 (May 15, 2000). Included in the rule are
revisions to the permit appeals process that replace evidentiary
hearing procedures with direct appeal to the Environmental Appeals
Board (EAB). The website for the EAB is ``http://www.epa.gov/eab/''.
The webpage has a frequently asked question section, ``http://
www.epa.gov/eab/eabfaq.htm''. Questions 1 through 9 deal with filing
issues, which the commenter can refer to for instructions on how to
proceed in filing an appeal with EAB. EPA does not allow automatic
transfer from individual permits into other individual or general
permits since EPA needs to maintain adequate records of permittees and
make periodic evaluations of the adequacy of their measures to comply
with permit requirements.
Comment b: EPA should extend coverage to facilities wishing to
apply after the expiration date of the MSGP until the permit is reissued.
Response b: Where EPA fails to reissue a permit prior to the
expiration of a previous permit, EPA has the authority to
administratively extend the permit for facilities already covered.
However, EPA does not have the authority to provide coverage to ``new''
facilities seeking coverage under an expired permit. This concern is
not applicable in this instance to the MSGP since the MSGP-2000 was
issued before the MSGP-1995 expired.

Section 13 Permit Conditions Applicable to Specific States, Indian
Country Lands

Comment: The Agency should not require compliance with provisions
of state rules that it cannot specifically identify. For example, EPA
requires compliance with state anti-degradation provisions. The Agency
provides no assistance with regard to how a small business might
somehow ascertain what those provisions are, who has them, and how they
might apply to the facility's discharge. See 65 Fed. Reg. at 17021. The
Agency must specify precisely how a company would obtain appropriate
data and how it should apply that data to its operations. Without this
necessary guidance, this new provision should be removed from the final
permit.
Response: The permit states that discharges are not covered if they
violate, or contribute to the violation of, a state water quality
standard. An anti-degradation policy is one component of a state's
water quality standards program. The permittee is responsible for
checking to ensure compliance with these provisions. Facility operators
can check with the EPA official listed in this permit to obtain the
name of the appropriate state contact.

Section I.A General Opposition to Proposed Changes

Comment: A commenter objected to several of the proposed
modifications to the ``Limitations on Coverage'' provisions in the
Proposed MSGP-2000, including the proposed revisions to the Endangered
Species Act requirements (Section 1.2.3.6), the addition of the
antidegradation provision (Section 1.2.3.9), the addition of the
impaired waters and TMDL provisions (Section 1.2.3.8), and the addition
of the compliance with water quality standards provisions in Section
3.3.
Response: The Agency acknowledges the comment. Justifications for
each of the positions cited by the commenter are provided in the fact
sheet accompanying the permit. Specific objections to these provisions
are addressed elsewhere in the comment response document.

Section I.B General Support to Proposed Changes

Comment a: Several commenters supported EPA's continued use of a
general NPDES permit for regulating storm water discharges associated
with industrial activity. The commenters indicated that this was an
efficient and effective means for achieving the goals of the Clean
Water Act.
Response a: EPA agrees with the commenters regarding the
appropriateness of general permits for the majority of industrial storm
water discharges. The issuance of the final MSGP is consistent with
these comments.
Comment b: A commenter supported the proposal to authorize
incidental windblown mist discharges from cooling towers as an
authorized non-storm water discharge under the MSGP.
Response b: These discharges are included in the final MSGP
consistent with the recommendation of the commenter.
Comment c: A commenter supported the provision in the proposed MSGP
to allow termination of permit coverage based on the ``no exposure
exemption'' (40 CFR 122.26(g)) provided under EPA's Phase II storm
water regulations of December 8, 1999 (64 Fed. Reg. 68722).
Response c: Although the no exposure exemption would be available
whether or not it is specifically included in the

[[Page 64788]]

MSGP, EPA has retained the provision in the final MSGP to highlight its
availability for those facilities which qualify.

Section I.C Fact Sheet

Comment a: It is imperative that EPA conduct an environmental
justice analysis for the MSGP to ensure that the permit is consistent
with the goals of EPA's Environmental Justice Strategy of April 3,
1995, the President's 1994 Executive Order on Environmental Justice and
Title VI of the Civil Rights Act. The notice of intent (NOI) must
include demographic information. EPA must seek comments of minority and
low-income communities regarding the MSGP.
Response a: EPA disagrees with the commenter that an environmental
justice analysis is necessary prior to the reissuance of the MSGP.
Regarding Title VI requirements, EPA has recently proposed guidance (65
Fed. Reg. 39649, June 27, 2000) for assisting recipients of Federal
funding which administer environmental programs (such as state
environmental agencies), as well as guidance for investigating alleged
disparate environmental impacts stemming from permitting programs
administered by these agencies. The guidance is also appropriate for
EPA permits, such as the MSGP.
The Title VI guidance encourages permitting authorities to
integrate environmental justice into their permitting programs.
However, an environmental justice analysis is not required for every
permit issued by a state permitting authority or by EPA. No information
was provided by the commenter that a disparate impact on minorities
would exist as a result of the MSGP. The MSGP includes numerous
effluent limitations and other conditions which should be protective of
water quality for all neighborhoods in which permitted facilities are
present. EPA does intend to integrate environmental justice
considerations explicitly into its permitting programs as outlined in
the Title VI guidance. However, this will likely be a longer term
process (extending beyond the time frame for reissuance of the MSGP)
given the many complexities of the issue.
EPA's Environmental Justice Strategy of April 3, 1995 (developed
pursuant to the President's 1994 Executive Order) has similar goals as
Title VI of the Civil Rights Act. Again, however, an environmental
justice analysis is not required for every permit issuance. The
integration of the goals of the Environmental Justice Strategy into the
NPDES permit program will also take time given the many complexities of
the environmental justice issue.
EPA is committed to implementing the Executive Order on
Environmental Justice. As a practical matter, environmental justice
concerns are community specific. EPA will work with a specific
community that may express concerns related to a specific source or
other environmental burdens. If and when a community raises such
issues, EPA can then consider a proper course of action. In the case of
the MSGP which will largely permit existing facilities, EPA will engage
the community that has raised the issue and, if appropriate, work with
the State and local agencies to address their concerns. If violations
of any applicable standards are identified, EPA can pursue possible
enforcement actions. The MSGP also provides that an alternate general
permit could be issued for any geographic area which may be identified
in the future as subject to disparate environmental impacts.
EPA has public noticed its intent to reissue the MSGP and has
requested comments throughout the areas potentially affected by the
permit, including areas where minority and low-income communities are
present. EPA believes that its outreach activities have been sufficient
for the permitting action which was proposed. However, EPA's
Environmental Justice Strategy also provides for additional outreach
activities in the future which may include outreach to minority and
low-income communities specifically regarding the MSGP.
EPA disagrees that demographic information should be required with
the NOI. The NOI does include location information for industrial
facilities seeking coverage under the permit. Using this information it
is possible to locate facilities covered by the permit relative to the
locations of different demographic groups. As such, it is not necessary
for the NOI to include demographic information.
Comment b: A commenter expressed concern that some non-storm water
discharges may be improperly characterized as storm water by certain
facilities. The commenter recommended that EPA carefully review permit
applications and conduct inspections to ensure that such discharges are
treated as point source discharges and not covered by the MSGP.
Response b: Point source discharges would violate the Clean Water
Act unless they are authorized by a separate NPDES permit. The MSGP
also requires that operators review their facilities for the presence
of unpermitted non-storm water discharges which are not authorized by
the MSGP. When such discharges are located, the MSGP requires that the
discharges be permitted or terminated. This requirement should minimize
the possibility that inappropriate non-storm water discharges are
discharged under the MSGP. As recommended by the commenter, EPA does
conduct periodic inspections of facilities permitted under the NPDES
permit program to evaluate the compliance status of a facility with the
requirements of the Clean Water Act, including the presence of any
unpermitted discharges. Although the permit application for the MSGP
(the notice of intent) does not specifically address the issue of non-
storm water discharges, EPA believes that the other requirements of the
MSGP, along with EPA's inspection program, adequately address the
commenter's concern.

Section II.A Organization and Clarity

Comment a: Virtually all commenters supported EPA's effort to make
the MSGP smaller and easier to understand. Several comments did express
concern that the reorganization and clarification of the permit may
have resulted in some substantial changes in permit requirements that
may not have been identified and explained in the preamble to the
proposed permit. The issue of whether or not explanation and guidance
contained in the 1995 MSGP preamble could still be relied upon was also
raised.
Response a: EPA went to great lengths to make the permit shorter
and easier to understand and believes all substantive changes were
identified and discussed in the preamble to the proposed permit.
Responses to specific comments on areas where a commenter felt that
adequate explanation for changes was not included in the proposal are
provided in responses to that comment. With regard to the more specific
explanation of sector-specific activities, etc. in the preamble to the
1995 MSGP, this information was incorporated by reference into the
proposal of today's permit and may still be relied upon to the extent
it does not conflict with the MSGP-2000 documents or is superceded by
later guidance. Commenters noted several instances where EPA
unintentionally changed requirements through the reformatting. EPA has
corrected the permit and identified these instances throughout the
comment response document.
Comment b: Based on EPA's use of incorporation by reference in the
proposed permit's preamble to avoid reprinting material from the 1995
MSGP's preamble, one commenter expressed concern that the requirement

[[Page 64789]]

in Part 4.7 to have a copy of the final permit with the Storm Water
Pollution Prevention Plan would be difficult if the entire permit was
not in a single package. This commenter also was concerned that
references to multiple Internet sites for more information would
further compound this problem. The commenter further suggested that a
copy of the permit and relevant guidance be included with the NOI
``confirmation'' letter sent by EPA in response to a complete NOI.
Another commenter supported making all relevant information available
in a single document.
Response b: The entire permit, appropriate addendums, the preamble
``fact sheet,'' and comment response summary are being published today
in the Federal Register and will, therefore, be easily available from
several Internet sites and from Federal Depository Libraries. The
information not repeated in the proposed permit notice was primarily
background and fact sheet information from the preamble to the 1995
MSGP. While the preamble and response to comments sections of the final
permit notice will undoubtedly be valuable to many permittees, the Part
4.7 requirement to have a copy of the permit language with the Storm
Water Pollution Prevention Plan refers only to the permit language
itself, including addendums. Based on experience with the previous
permit, EPA believes the benefits of keeping the size and complexity of
the permit to manageable (i.e., less intimidating, easier to use) level
far outweigh the benefit of making all supporting and guidance
information, much of which will apply to only a small portion of
potential permittees, available in a single document. EPA does expect
that for convenience, many permittees will simply attach a copy of the
entire Federal Register notice of the final permit to comply with Part
4.7.
EPA believes the references throughout the permit and preamble to
various Internet sites is a sensible alternative to publishing
information, only a small part of which may apply to any one facility
or which will be changing over time and quickly become outdated. For
example, due to periodic updates that must be made to the endangered
species list based on new species being listed or old ones delisted,
the county-species list was not published with the final permit. This
omission saves tax dollars on publication, keeps the size of the permit
package down (the current list would double the size of the permit
while any one facility only needs to look at a page or so of
information), and avoids the inadvertent use of an outdated species
list that could result not only in failure to consider potential
adverse effects on an endangered species, but also negate a
discharger's permit coverage. EPA relies heavily on electronic
distribution of documents and guidance, but will be able to provide
hard copy or telephone-based information to those who have no access to
the Internet or Federal Depository Libraries.
As noted above, the complete permit has been printed and EPA
intends to make guidance available, primarily through the Internet. The
suggestion to include a copy of the permit and guidance with the NOI
``confirmation'' letter is impractical since most of this information
would have been necessary to develop the Storm Water Pollution
Prevention Plan that must be developed before the NOI can be submitted.

Section III Geographic Coverage of Proposed MSGP

Comment: Several commenters and attendees of meetings on the
proposed permit identified an inconsistency between Part 6.J.3 of the
permit, where mine dewatering discharges from construction sand and
gravel, industrial sand, and crushed stone mines were apparently
eligible only in Arizona and both the previous permit and the preamble
to the proposed MSGP-2000 where such discharges were also eligible in
all of the permits for Region 1, 2, 6, and 10. One commenter referred
to pages 17025 and 17034 of the preamble to the proposed permit in
support of their belief that the proposed permit had been intended to
provide coverage in Regions 1, 2, 6, and 10 and in Arizona.
Response: The typographical error in Part 6.J.3 has been corrected.
As supported by item 4 on page 17025 and item 2 on page 17034 of the
Federal Register notice of the proposed permit (65 FR 17025 and 17034),
coverage for mine dewatering discharges from construction sand and
gravel, industrial sand, and crushed stone mines in not only Arizona,
but also Regions 1, 2, 6, and 10 was intended.

Section V.A Historic Preservation

Comment a: It would be more in keeping with balancing the agency's
CWA mandate and NHPA obligation to not preclude general permit coverage
for those discharges that may affect historic properties. Instead,
require the general permittee to notify the agency of the existence of
a listed historic property that will be affected along with any
preventive or mitigation measures, if necessary, that it plans to
implement. EPA could then decide if any further consideration or action
is warranted, including any comment by the Council. The obligations
established under Sec. 106 are placed upon the agency, not on the
permittee.
Response a: EPA agrees and acknowledges that NHPA Section 106
imposes obligations only on federal agencies and not on third parties.
EPA's action in issuing permits, however, triggers NHPA Section 106. In
order to issue a general permit, EPA included historic preservation-
related application and eligibility provisions in order to ensure that
it could ``filter'' out permitting activities that might otherwise
trigger advanced procedures under NHPA Section 106. Section 110(k) of
the Act prohibits a Federal agency from granting a loan, loan
guarantee, permit, license or other assistance to an applicant who
intends to avoid requirements of section 106 (64 FR 95 May 18, 1999).
To meet this responsibility, EPA requires the applicant to do one of
the following: (1) Determine that historic properties are not in the
path of permit activities, (2) determine that permit activities have no
impact on historic properties, or (3) the permittee reaches agreement
with appropriate authorities on measures to mitigate or prevent adverse
effects. Thus, it is quite possible for facilities having an impact on
historic properties to be covered by the MSGP. Authorization to
discharge under the MSGP is a privilege, not a right, which carries
with it certain procedural and timing advantages for the permittee.
Therefore, it is incumbent upon the permittee, not EPA, to conduct
whatever investigations and consultations are necessary consistent with
EPA's obligation to satisfy NHPA provisions.
Comment b: The notice states that the provisions in Part 1.2.3.7,
are ``likely to change as a result of consultations'' under the NHPA.
The procedures set forth in Addendum B are described as being
``models'' of what the NHPA guidance ``may look like.'' These
provisions are critical for permittees to determine their eligibility
for coverage under MSGP-2000, and any substantive changes in these
areas should be subject to review and comment by the regulated
community before they are adopted.
Response b: There are no changes to these provisions as a result of
NHPA consultations.
Comment c: Part 2.1.2.2, which deals with discharges that are
authorized under the 1995 MSGP, but not clearly eligible for coverage
under this permit, does not allow adequate transition time for those
permittees who do not have up-to-date determinations pursuant to the
NHPA.

[[Page 64790]]

Response c: Within 90 days the permittee must apply for MSGP
coverage and certify his compliance with other permit provisions. He
then has up to 180 additional days of interim coverage under the MSGP
while he conducts the consultation and determines whether he meets the
criteria for coverage under the MSGP. EPA believes that 270 days is a
sufficient period to conduct and conclude this consultation and take
whatever action is necessary to ensure continued permit coverage.
Comment d: EPA states that, ``For existing dischargers * * * a
simple visual inspection may be sufficient * * * '' (emphasis added).
This statement is somewhat disingenuous because a ``simple visual
inspection'' is rarely sufficient to determine historic eligibility of
an area because many historic resources are often located underground.
EPA should provide reasonable guidance worded specifically to shield
permittees from liability.
Response d: EPA believes that, for existing dischargers who do not
need to construct BMPs for permit coverage, a simple visual inspection
may be sufficient to determine whether historic properties are
affected. However, for facilities which are new industrial storm water
dischargers and for existing facilities which are planning to construct
BMPs for permit eligibility, applicants should conduct further inquiry
to determine whether historic properties may be affected by the storm
water discharge or BMPs to control the discharge. In such instances,
applicants should first determine whether there are any historic
properties or places listed on the National Register or if any are
eligible for listing on the register (e.g., they are ``eligible for
listing''). Thus, the Agency does not imply that a visual inspection is
always sufficient. In instances of uncertainty, the permittee is
encouraged to consult with authorities who can advise on the likelihood
of historic properties above or below ground.
Given the Agency's obligation to comply with the NHPA and its
efforts to coordinate that obligation with the implementation of
general permits, the historic preservation-related eligibility
restrictions cannot provide an ironclad shield from liability. The
permit guidance provides a common sense approach to an historic
property assessment. Facility operators are encouraged to consult with
local authorities who can advise on the likelihood of historic
properties at the facility.
Comment e: Portions of the text are reproduced and other portions
not reproduced in columns 1 and 2 of page 17018 of the notice. See 65
F.R. at 17018. Due to this problem, the commenter is unable to provide
any comments on EPA's proposed new changes to the MSGP since he is
uncertain what EPA intends or proposes. The commenter suggests that EPA
fix the language related to the proposed MSGP and re-issue that
correction for public review and comment.
Response e: EPA apologizes for the typing error which resulted in a
number of sentences being listed twice on p. 1018. Despite this
confusion, EPA believes the intent of the section is clear and does not
require reproposal.

Section V.B Endangered Species

Comment a: The term ``unacceptable effects'' is used almost
interchangeably with ``likely to adversely affect'' (See 65 Fed. Reg.
17051), which is similarly undefined in the permit and in pertinent
regulation. The correct term for purposes of ESA compliance is the ``no
jeopardy'' standard set forth in Section 7 of the ESA (17 U.S.C
Sec. 1536(a)(2)).
Response a: EPA agrees with the commenter regarding the term
``avoid unacceptable effects.'' Therefore, EPA has deleted the term and
uses the ``no jeopardy'' language as stated in part 1.2.3.6.6.
Comment b: The definition of ``discharge-related activities'' is so
all-encompassing that it could include virtually all activities at a
mine, from drilling and blasting to loading, hauling and dumping and
equipment maintenance, in addition to any activities that are part of a
Storm Water Pollution Prevention Plan (SWPPP). There is no
justification for a requirement to certify ESA compliance for all of
these activities in order to obtain coverage under the MSGP. This
requirement clearly exceeds EPA's authority under the Clean Water Act.
Response b: The endangered species provision covers only those
activities that are associated with storm water industrial activity.
The phrase ``discharge-related activities'' is intended to clarify that
EPA considers a broad range of activities related to storm water
discharges to be covered by the permit and, therefore, subject to ESA
and NHPA provisions. This broader list of activities could result in
environmental impairment if not addressed through a SWPPP. Since the
permit covers this broad range, and EPA's permit authority is subject
to ESA provisions, then this broader range of activities is subject to
the ``no jeopardy'' finding. BMPs, whether already in place or added,
which serve to satisfy the criteria for coverage under the MSGP, are
thus subject to the endangered species provisions.
Comment c: While transitional discharge authorization is available
for up to 270 days from the date of publication of the permit in the
Federal Register, that transitional coverage is only available if the
permittee submits an application for an alternative permit (most likely
an individual permit) within 90 days after publication. Since formal
Section 7 consultation is nominally a 135-day process (as stated in the
Construction General Permit, see 63 Fed. Reg. 7872), permittees, in
order to ensure continuous coverage, would be required to prepare and
submit an application for an individual permit before they knew whether
they were eligible for coverage under MSGP-2000. This is an unnecessary
burden, on both the permittee and the agency. EPA should extend these
time limits--for submission of an application for an alternative permit
to 180 days, and for transitional coverage to one year.
Response c: EPA will retain the requirement that all applicants
must submit their Notice of Intent (NOI) in 90 days. Those applicants
who are entering into endangered species consultations or adverse
impact investigations could apply for extensions up to 180 days and be
covered by an interim permit until their application is completed. EPA
believes that 270 days is a sufficient period to conduct and conclude
this consultation and take whatever action is necessary to ensure
continued permit coverage. The County Species list is available on
EPA's web site or by contacting a local official. EPA will update its
web site list every 90 days.
Comment d: EPA indicates that the proposed species-related
requirements could change, before final issuance, based on consultation
with the Fish and Wildlife Service. The public will not have an
opportunity to participate in that process, including through
commenting on any additional requirements suggested by the Service. If
the Service does suggest any substantial changes in MSGP-2000, the
public should have an opportunity to review and comment on those
changes before EPA makes a decision as to whether to incorporate them
into the final permit.
Response d: There are no changes to these provisions as a result of
NHPA and ESA consultations, except that, based on comments to the
proposed permit, EPA has deleted the inclusion of proposed species on
the endangered species list.

[[Page 64791]]

Comment e: The duty triggered by the section of the Endangered
Species Act (ESA) upon which EPA relies falls not upon the discharger
but upon EPA. Thus under EPA's proposal, it would be EPA's duty to
assess the impact of each discharger applying for coverage, and if this
provision is not removed, EPA loses the benefit of the general permit.
The action of adopting the general permit itself triggers EPA's duty,
and so EPA, not the discharger, must assess ESA impacts now, not after
the fact of the permit.
Response e: EPA is bound by the ESA and attempted to coordinate
general permit implementation with its ESA obligations. Authorization
to discharge under the MSGP is a privilege which carries with it
certain procedural and timing advantages for the permittee. Therefore,
it is incumbent upon the permittee, not EPA, to conduct whatever
investigations and consultations are necessary to satisfy the ESA-
related eligibility provisions. Since EPA cannot predetermine which
facilities will apply for coverage under the MSGP, it is impossible for
EPA to conduct the site-specific assessments required under the ESA at
the time of general permit issuance.
Comment f: Despite previous consultation on the problems of earlier
MSGP drafts, certain problems persist, including the gray area language
that has fueled citizen suits against permittees. Not only has the
agency failed to adequately address this issue, it has increased the
liability potential by increasing the requirements for permittees to
comply with other agency rules. EPA should clarify language to
eliminate the potential for liability for permittees and should reduce
the cost and paperwork burdens for compliance with ESA and NHPA.
Response f: Given the operation of the regulatory innovation, the
``general permit,'' EPA cannot provide an ironclad shield from
liability in the way the commenter proposes. The permit guidance
provides a common sense approach to endangered species and historic
property assessments. Facility operators are encouraged to consult with
local authorities who can advise on the likelihood of endangered or
threatened species, critical habitat, or historic properties at the
facility. EPA believes the additional burden associated with the
expanded NOI form is minimal because permittees are required to make
the findings which are reflected on the form. The additional
information provides greater assurance that the assessment has been
conducted, but does not in itself constitute the requirement for the
assessment. EPA acknowledges that, until such time as the revised form
has been cleared by OMB, permittees will continue to use the current
NOI form (as modified slightly to conform to changes made elsewhere to
the permit).
Comment g: The endangered species section of the permit relating to
endangered species is cumbersome and appears to go beyond the intent of
the Clean Water Act and beyond the EPA's authority set in the CWA.
Response g: EPA acknowledges the comment, but disagrees. EPA
believes these provisions are essential to carry out its responsibility
not to issue a permit which could jeopardize an endangered or
threatened species, or critical habitat. EPA has consulted with the
U.S. Fish and Wildlife Service and the National Marine Fisheries
Service to ensure compliance with the Endangered Species Act. The
``discharge-related activities'' restriction on eligibility also
implements the Agency's obligations under NHPA Section 106.
Comment h: The permit should clarify that coverage of the MSGP, and
certification by the permittee, need address only new impacts resulting
from new changes in operations for which discharges are covered and
authorized by the MSGP. In other words, the ``baseline'' for assessment
of effects or impacts should be the date of reissuance of the MSGP or,
if later, initiation of new activities to be covered by the MSGP.
Response h: All activities covered by the permit, whether new or
existing, are subject to the provisions. It is inappropriate to
interpret that these provisions apply only to new activities.
Comment i: The endangered species section suggests that a potential
permittee utilize ``due diligence'' in determining whether or not a
potential impact to an endangered or threatened species may exist. This
language is too vague and subjective--differing interpretations what
constitutes due diligence exist. This is particularly true when dealing
with an issue as complex as impact to endangered species or their
habitats, where the expertise necessary to make this determination is
usually beyond the reach of most industrial operators. It is likely
that this could become the focal point of efforts to block permit
issuance by those with differing agendas. Further clarification of what
is required under ``due diligence'' is required.
Response i: EPA believes that the language must provide flexibility
to reflect the case-by-case decisions which must be made. In response
to the commenter's concern, EPA has replaced the ``due diligence''
phrase with ``best judgment.'' Consultations with local endangered
species officials is advised if the permittee is uncertain how to apply
these provisions to his facility.
Comment j: Only those species that have been listed should be
identified on this list and used in the determination of permit
coverage; not those that have not gone through the entire listing
process.
Response j: EPA acknowledges the comment and has revised the
language to exclude proposed listing requirements.
Comment k: In this section, an applicant is expected to determine
whether endangered species are ``in proximity'' to the stormwater
discharges or discharge-related activities at the facility. In
proximity is described as being ``in the path or down gradient'' or in
the ``immediate vicinity of or nearby,'' the facility. These
definitions are far too vague, and could refer to the presence of
species located a considerable distance from a facility, not merely
those located close enough to a facility to be affected by that
facility's stormwater discharge. This section requires clanfication.
Response k: EPA has retained this language from the 1995 MSGP. EPA
believes that the language must provide flexibility to reflect the
case-by-case decisions which must be made. Consultations with local
endangered species officials is advised if the permittee is uncertain
how to apply these provisions to his facility.
Comment l: This section provides that ``where there are concerns
that coverage for a particular discharger is not sufficiently
protective of listed species (and presumably those proposed for listing
as well) the Services (as well as any other interested parties) may
petition EPA to require that the discharger obtain an individual NPDES
permit and conduct an individual section 7 consultation as
appropriate.'' It is clear that this will provide ample opportunity to
those who would seek to delay or deny permit issuance, even in those
circumstances where an actual impact to species or habitat does not
exist. This procedure should be a formal one in which the permit
remains in force until EPA, after careful and rigorous scientific
evaluation of the potential impact, determines whether or not an impact
exists and, if so, whether or not an alternative permit is warranted.
Response l: Opportunity for public input is an essential component
of any government regulatory program. As the commenter suggests, the
permit would remain in effect until such time as EPA

[[Page 64792]]

concludes that the activity is no longer eligible for coverage under
the permit.

Section V.C 303(d)

Comment a: Several commenters challenged Parts 1.2.3.8. of the
permit because they believe it inaccurately applies 40 CFR 122.4(i)
regarding compliance with water quality standards to discharges covered
by a general permit. Several commenters believe that one doesn't have
to consider 40 CFR 122.4(i) if they only add an outfall and similarly
one commenter believes that new dischargers under Phase 2 do not have
to consider 40 CFR 122.4(i). Commenters stated that any provisions
added to the reissued MSGP regarding impaired waters or TMDLs are
premature until the new TMDL rule is final. It seems that the major
concern is that previously unpermitted discharges would be disallowed
coverage under this Part.
Response a: EPA, in Sections 1.2.3.8.1 and 1.2.3.8.2, was merely
conditioning a discharger's eligibility for coverage under the MSGP
upon meeting certain existing conditions and requirements in EPA's
NPDES regulations which apply in all applicable circumstances involving
both individual and general permits. In doing so, EPA intended to
merely restate those existing conditions and requirements as
eligibility requirements under the MSGP. Specifically, EPA's intention
in section 1.2.3.8.1 was to condition a new discharger's eligibility
for coverage under the MSGP upon meeting the existing regulatory
conditions under 40 CFR 122.4(i). A new discharger, therefore would not
be eligible for coverage under the MSGP if its discharge would ``cause
or contribute to a violation of a water quality standard.'' As
mentioned, this regulation is applicable to all new dischargers
irrespective of the type of permit they are seeking coverage under;
there is no language in this regulation that exempts new dischargers
seeking coverage under a general permit. EPA, in section 1.2.3.8.1 of
the MSGP, did not intend to create any confusion or change any existing
interpretation of the current regulatory language referred to in that
section. To avoid confusion EPA is therefore amending the language in
section 1.2.3.8.1 to state that ``you are not authorized to discharge
if your discharge is prohibited under 40 CFR 122.4(i).''
EPA's intention in section 1.2.3.8.2 was to condition a
discharger's eligibility for coverage under the MSGP upon meeting the
existing regulatory requirements under existing 40 CFR
122.44(d)(1)(vii)(B). This section of EPA's regulations requires
permitting authorities to develop effluent limits in permits that are
``consistent with the assumptions and requirements of any available
wasteload allocation for the discharge prepared by the State and
approved by EPA pursuant to 40 CFR 130.7'' (EPA's existing TMDL
regulations). This requirement applies to all NPDES permits both
individual and general permits.
Comment b: One commenter expressed confusion about what is meant by
``new discharges'' as this term is not defined in 40 CFR 122.2.
Response b: The final permit will omit the term ``new discharge''
since it is not necessary for the requirement and it has caused
confusion. Today's permit will change the term ``new discharge'' to
simply ``discharge'' in the first sentence of Part 1.2.3.8.1.
Comment c: Eligibility restrictions of the permit should be limited
to those discharges of pollutants actually listed in a TMDL.
Response c: Section 1.2.3.8.2 of the MSGP contains the eligibility
requirement that discharges be consistent with an EPA established or
approved TMDL. EPA agrees with the commenter's suggestion that Section
1.2.3.8.2 should clearly state that such requirement is only applicable
to facilities discharging the pollutant for which the TMDL is
established. EPA is therefore, adding this language to Section
1.2.3.8.2.
Comment d: Discharges to 303(d) listed or 303(e) listed waters
should be monitored for contaminants that impair or threaten water
quality; however, monitoring requirements should be relaxed for other
contaminants that do not impair or threaten receiving water quality.
Several commenters wanted either exclusive or additional monitoring of
discharges to impaired waters for pollutants of concern in lieu of the
eligibility requirements based on whether or not a facility causes or
contributes to the impairment.
Response d: EPA acknowledges that the MSGP may not contain
monitoring requirements for a pollutant for which a waterbody is listed
as impaired. This does not eliminate the burden of the discharger in
determining that its effluent does not cause or contribute to a
violation of water quality standards. Section 1.2.3.8.1 in the MSGP is
an eligibility provision which restates existing regulatory
requirements, it does not create new restrictions on any dischargers.
If a discharger cannot meet the eligibility requirements, then that
discharger is not authorized to discharge under the MSGP. Under
existing regulations, EPA has the discretion to establish whatever
eligibility requirements that it believes are appropriate. Section
1.2.3.8.1 is an eligibility provision that does no more than restate
existing regulatory requirements as a condition of being authorized to
discharge under the permit. It does not dictate, establish or restrict
the use of any particular framework, effluent limits or permit
conditions within the permit itself or describe or restate any new
interpretation of the underlying regulations which it refers to.
Comment e: Several commenters were not clear how to determine or
implement loadings imposed by TMDLs. Further they requested that
loadings based on the TMDL be excluded from the MSGP and addressed
separately so that the regulated community could have an opportunity to
comment on them. One commenter stated that the eligibility requirement
of Part 1.2.3.8. is not appropriate because there was no opportunity to
comment on the TMDL.
Response e: It is not necessary that all dischargers receive
individual wasteload allocations. EPA's regulations at 40 CFR 130.2
define a wasteload allocation as the portion of the receiving water's
loading capacity that is allocated to one of its existing or future
point sources of pollution. EPA has interpreted this regulation to mean
that each point source must be given an individual wasteload allocation
when it is feasible to calculate such a wasteload allocation. EPA
believes that states may find it infeasible to calculate individual
wasteload allocations for all point sources covered by a specific
general permit. In that case, the TMDL would establish individual
wasteload allocations for dischargers subject to individual permits
whereas dischargers subject to a general permit would be accounted for
in the aggregate under a single wasteload allocation specific to the
general permit under which they are authorized to discharge.
In addition, wasteload allocations can be expressed in different
ways, including, percent loading reductions. See 40 CFR 130.2(i) ``* *
* TMDLs can be expressed in terms of either mass per time, toxicity, or
other appropriate measures. * * *'' Effluent limitations must be
consistent with (but not identical to) the wasteload allocations in
TMDLs. See 40 CFR 122.44(d)(1)(vii)(B). Effluent limitations for point
source discharges of storm water may be narrative limitations that are
expressed in terms of best management practices (BMPs). This policy is
consistent with EPA's approach in its Interim Permitting

[[Page 64793]]

Approach For Water Quality-Based Effluent Limitations in Storm Water
Permits (September 1996, EPA 833-D-96-001). This interim approach
allows limits to be expressed in the form of BMPs as a means of
satisfying the requirement that limits derive from and comply with
water quality standards and are consistent with an EPA approved or
established TMDL.
All dischargers who discharge the pollutant for which the waterbody
is impaired must be accounted for in the TMDL. Every point source
discharger located on the impaired waterbody and discharging the
pollutant for which the waterbody is impaired must be accounted for
under a wasteload allocation. The State may choose, however, to give a
discharger a wasteload allocation that would not require any reduction
in loading. In other words, all facilities discharging the pollutant
for which the waterbody is impaired must be subject to a wasteload
allocation but all facilities subject to a wasteload allocation may not
be required to reduce their loads.
Comment f: Several commenters requested guidance on how to
adequately evaluate a discharge's eligibility under Part 1.2.3.8 and
1.2.3.9 of the permit.
Response f: EPA intends the analysis to be similar to what a
permittee under the previous MSGP had to do in accordance with Part
I.B.3.f. of that permit. The applicant must avail himself of all
discharge characterization data or estimation of discharge character
and determine compliance. If the permittee is able to evaluate
eligibility on his own because he has access to State Water Quality
Standards, 303(d) lists, TMDLs etc. (all of which are available either
from the permit issuing authority or in some cases, online) then he can
make his determination, document the determination process in his
pollution prevention plan, and sign the NOI. In other cases, the
Director may notify him that he is not eligible for coverage if such a
determination is made independently, and may require an application for
an individual permit.
Comment g: One commenter requested confirmation that Part 1.2.3.8.1
applies to facilities constructed after August 13, 1979 that have not
yet been issued an NPDES permit.
Response g: Part 1.2.3.8.1 applies to discharges, not facilities,
that have begun after August 13, 1979 that have not yet been authorized
by an NPDES permit.

Section V.D--Antidegradation

Comment a: The proposed requirements do not accurately reflect
States' anti-degradation policy. Commenters stated that anti-
degradation does not hold a permittee accountable until a State's
policy is interpreted into a permit. The State's review of the general
permit under the CWA 401 is the extent of applicable anti-degradation
review. Therefore, delete Part 1.2.3.9. since an individual discharger
applying for general permit coverage cannot determine how the State's
anti-degradation policy, especially regarding the Tier 2 ``high quality
water'' provisions, will be implemented at a particular facility.
Response a: EPA, in Sections 1.2.3.8.1 and 1.2.3.8.2, was merely
conditioning a discharger's eligibility for coverage under the MSGP
upon meeting certain existing conditions and requirements in EPA's
NPDES regulations which apply in all applicable circumstances involving
both individual and general permits. In doing so, EPA intended to
merely restate those existing conditions and requirements as
eligibility requirements under the MSGP. Specifically, EPA's intention
in section 1.2.3.8.1 was to condition a new discharger's eligibility
for coverage under the MSGP upon meeting the existing regulatory
conditions under 40 CFR 122.4(i). A new discharger, therefore would not
be eligible for coverage under the MSGP if its discharge would ``cause
or contribute to a violation of a water quality standard.'' As
mentioned, this regulation is applicable to all new dischargers
irrespective of the type of permit they are seeking coverage under;
there is no language in this regulation that exempts new dischargers
seeking coverage under a general permit. EPA, in section 1.2.3.8.1 of
the MSGP, did not intend to create any confusion or change any existing
interpretation of the current regulatory language referred to in that
section. To avoid confusion EPA is therefore amending the language in
section 1.2.3.8.1 to state that ``you are not authorized to discharge
if your discharge is prohibited under 40 CFR 122.4(i).''
EPA acknowledges that the MSGP may not contain monitoring
requirements for a pollutant for which a waterbody is listed as
impaired. This does not eliminate the burden of the discharger in
determining that its effluent does not cause or contribute to a
violation of water quality standards. Section 1.2.3.8.1 in the MSGP is
an eligibility provision which restates existing regulatory
requirements, it does not create new restrictions on any dischargers.
If a discharger cannot meet the eligibility requirements, then that
discharger is not authorized to discharge under the MSGP. Under
existing regulations, EPA has the discretion to establish whatever
eligibility requirements that it believes are appropriate. Again,
section 1.2.3.8.1 is an eligibility provision that does no more than
restate existing regulatory requirements as a condition of being
authorized to discharge under the permit. It does not dictate,
establish or restrict the use of any particular framework, effluent
limits or permit conditions within the permit itself or describe or
restate any new interpretation of the underlying regulations which it
refers to.
EPA's intention in section 1.2.3.8.2 was to condition a
discharger's eligibility for coverage under the MSGP upon meeting the
existing regulatory requirements under existing 40 CFR
122.44(d)(1)(vii)(B). This section of EPA's regulations requires
permitting authorities to develop effluent limits in permits that are
``consistent with the assumptions and requirements of any available
wasteload allocation for the discharge prepared by the State and
approved by EPA pursuant to 40 CFR 130.7'' (EPA's existing TMDL
regulations). This requirement applies to all NPDES permits both
individual and general permits.
Wasteload allocations can be expressed in different ways,
including, percent loading reductions. See 40 CFR 130.2(i) ``* * *TMDLs
can be expressed in terms of either mass per time, toxicity, or other
appropriate measures * * *.'' Effluent limitations must be consistent
with (but not identical to) the wasteload allocations in TMDLs. See 40
CFR 122.44(d)(1)(vii)(B). Effluent limitations for point source
discharges of storm water may be narrative limitations that are
expressed in terms of best management practices (BMPs). This policy is
consistent with EPA's approach in its Interim Permitting Approach For
Water Quality-Based Effluent Limitations in Storm Water Permits
(September 1996, EPA 833-D-96-001). This interim approach allows limits
to be expressed in the form of BMPs as a means of satisfying the
requirement that limits derive from and comply with water quality
standards and are consistent with an EPA approved or established TMDL.
The commenter correctly recognizes the difficulty in determining
what defines ``necessary to accommodate important economic or social
development'' in accordance with 40 CFR Section 131.12(a)(2). By
statute, this determination involves public participation, the
assurance that water quality will be protected, and several other
factors. EPA would have to modify

[[Page 64794]]

the permit for each discharge in question in order to comply with 40
CFR Section 131.12(a)(2). Individual considerations such as these are
contrary to the concept of a general permit. In addition, public
participation would be impossible since the permit issuing authority
would not know about the particular discharge to tier 2 waters before a
NOI was submitted. Therefore, a facility operator must seek coverage
under an individual permit to discharge to tier 2 waters under 40 CFR
Section 131.12(a)(2)'s allowable degradation provisions to satisfy the
requirements for public participation and protection of water quality.
The only discharges allowed coverage under today's permit are those
which do not degrade the use of a tier 2 water below its existing
levels, even though those existing levels exceed levels necessary to
support propagation of fish, shellfish and wildlife and recreation in
and on the water.
Comment b: While the eligibility requirements disallow the
discharge to cause and contribute to the impaired water, the permit
doesn't require monitoring for the pollutant of concern. This presents
the potential for the permit issuing authority to determine that a
discharge causes or contributes at a later date than the submittal of
the NOI, effectively creating a violation of the permit without the
permittee being able to know of it or prevent it.
Response b: There will be situations where an NOI is accepted by
the permit issuing authority and coverage provided to a facility that
did not meet the eligibility requirements. Other situations include
changes, such as the approval of a TMDL, which may cause a discharge to
no longer be eligible. Upon learning of these types of situations, the
Director may either require the permittee to submit an application for
an individual NPDES permit, take an enforcement action, allow the
facility to eliminate the concern, or any combination of these actions.
Comment c: The eligibility requirements require the permittees to
predict the final requirements of the TMDL rule and the final loadings
of TMDLs approved in the future. Part 1.2.3.8.1 shouldn't be included
in the permit because it inaccurately applies 122.4(i) to general
permittees.
Response c: EPA, in Sections 1.2.3.8.1 and 1.2.3.8.2, was merely
conditioning a discharger's eligibility for coverage under the MSGP
upon meeting certain existing conditions and requirements in EPA's
NPDES regulations which apply in all applicable circumstances involving
both individual and general permits. In doing so, EPA intended to
merely restate those existing conditions and requirements as
eligibility requirements under the MSGP. Specifically, EPA's intention
in section 1.2.3.8.1 was to condition a new discharger's eligibility
for coverage under the MSGP upon meeting the existing regulatory
conditions under 40 CFR 122.4(i). A new discharger, therefore would not
be eligible for coverage under the MSGP if its discharge would ``cause
or contribute to a violation of a water quality standard.'' As
mentioned, this regulation is applicable to all new dischargers
irrespective of the type of permit they are seeking coverage under;
there is no language in this regulation that exempts new dischargers
seeking coverage under a general permit. EPA, in section 1.2.3.8.1 of
the MSGP, did not intend to create any confusion or change any existing
interpretation of the current regulatory language referred to in that
section. To avoid confusion EPA is therefore amending the language in
section 1.2.3.8.1 to state that ``you are not authorized to discharge
if your discharge is prohibited under 40 CFR 122.4(i).''
EPA's intention in section 1.2.3.8.2 was to condition a
discharger's eligibility for coverage under the MSGP upon meeting the
existing regulatory requirements under existing 40 CFR
122.44(d)(1)(vii)(B). This section of EPA's regulations requires
permitting authorities to develop effluent limits in permits that are
``consistent with the assumptions and requirements of any available
wasteload allocation for the discharge prepared by the State and
approved by EPA pursuant to 40 CFR 130.7'' (EPA's existing TMDL
regulations). This requirement applies to all NPDES permits both
individual and general permits.
Comment d: The final permit needs to be clear that the requirements
of Part 1.2.3.8.2 only apply to the pollutant of concern in the TMDL
actually being discharged by the facility. This idea is in Part
1.2.3.8.1. and should be included in 1.2.3.8.2 as well. Similarly, EPA
should lift the new source and new discharger restrictions if there is
not a storm water component of the approved TMDL. The final permit
should clarify that a facility may not have a specific allocation in an
approved TMDL and as such may still be eligible for the general permit.
Response d: Section 1.2.3.8.2 of the MSGP contains the eligibility
requirement that discharges be consistent with an EPA established or
approved TMDL. EPA agrees with the commenter's suggestion that Section
1.2.3.8.2 should clearly state that such requirement is only applicable
to facilities discharging the pollutant for which the TMDL is
established. EPA is therefore, adding this language to Section
1.2.3.8.2.
Comment e: The eligibility requirements in Part 1.2.3.9 defeat the
concept of efficiency of a general permit and should be removed. EPA
does not have the authority to require the applicant to assess if they
support the use classification of the receiving water because it
increases the cost of applying for general permit coverage which has
not been evaluated by EPA under the Unfunded Mandates Reform Act.
Furthermore, the duty to determine whether or not a discharge supports
the use classification of a receiving water is the permit issuing
authority's responsibility.
Response e: The concept of the general permit is to reduce the
administrative burden on EPA and the regulated community by issuing one
permit for many facilities that would otherwise all have exactly the
same conditions in their individual permits. If a facility is not like
other ones where it would have different permit conditions it should
not apply for the general permit in question. This general permit only
applies to facilities that support the use classification of the
receiving waters. If they do not, EPA is not obligated to change the
general permit to include them. The applicant must seek alternate
permit coverage. It is the permit issuing authority's responsibility to
ensure that the conditions of the general permit support use
classifications. It is not their responsibility to ensure that each
individual discharge authorized by the permit supports the use. The
eligibility requirements are there to indicate the type of facility
that can be covered under the permit. The efficiency intended by a
general permit is to reduce the number of individual permits and to
make application for NPDES permit easier for those who qualify for the
coverage under the general permit.
Comment f: The final permit needs to be clear that a facility may
not have a specific allocation in an approved TMDL and as such may
still be eligible for the general permit.
Response f: EPA agrees in part with the commenter that there may be
circumstances under which it is not necessary that all dischargers
receive individual wasteload allocations. EPA's regulations at 40 CFR
130.2 define a wasteload allocation as the portion of the receiving
water's loading capacity that is allocated to one of its existing or

[[Continued on page 64795]]

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