Daily Rules, Proposed Rules, and Notices of the Federal Government
This action does not impose requirements on any entity. The action clarifies the status of stormwater discharges from logging roads. Those with an interest in such discharges may be interested in this action. If you have questions regarding the applicability of this rule, consult the person listed in the preceding
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The EPA is promulgating this final rule to address the stormwater discharges identified under
The final rule clarifies that, for the purposes of assessing whether stormwater discharges are “associated with industrial activity,” the only facilities under SIC code 2411 that are “industrial” are: rock crushing, gravel washing, log sorting, and log storage. This clarifies, contrary to the Ninth Circuit's decision in NEDC, that discharges of stormwater from silviculture facilities other than the four specifically named silviculture facilities identified above do not require an NPDES permit.
The objective of the Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the nation's waters. 33 U.S.C. 1251(a). To that end, the Act provides that the discharge of any pollutant by any person shall be unlawful, except in compliance with other provisions of the statute. Generally, the Act provides for a permit program for the addition to waters of the United States of a pollutant from a point source, defined as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.” 33 U.S.C. 1362(14). In 1987 Congress amended the Clean Water Act by adding section 402(p), that created a temporary moratorium on NPDES permits for stormwater discharges, except for certain listed categories, and gave the EPA discretion to designate other stormwater discharges for regulation. 33 U.S.C. 1342(p).
For the initial phase, section 402(p)(1) created a temporary moratorium on NPDES permits for stormwater discharges from point sources except for those listed in section 402(p)(2), which includes discharges for which a permit had already been issued; discharges from large municipal separate storm sewer systems; and “industrial discharges.” Congress did not define industrial discharges, allowing the EPA to define the term. For subsequent phases, section 402(p)(5) directs the EPA to conduct studies, in consultation with the states, for “identifying those stormwater discharges or classes of stormwater discharges for which permits are not required”; “determining to the maximum extent practicable, the nature and extent of pollutants in such discharges”; and “establishing procedures and methods to control stormwater discharges to the extent necessary to mitigate impacts on water quality.” Section 402(p)(6) directs the Agency to issue regulations, in consultation with state and local officials, based on such studies. The section allows the EPA flexibility in issuing regulations to address designated stormwater discharges where appropriate and does not require the use of NPDES permits or any specific regulatory approach. Specifically, the section states that the regulations “shall establish priorities, establish requirements for state stormwater management programs, and establish expeditious deadlines” and may include “performance standards, guidelines, guidance, and management practices and treatment requirements, as appropriate.” 33 U.S.C. 1342(p)(6). This flexibility is unique to stormwater discharges and is different than the treatment of stormwater discharges listed in section 402(p)(2)(B) of the Act, which requires a permit for a stormwater discharge “associated with industrial activity.”
Prior to the 1987 Amendments, there were numerous questions regarding the appropriate means of regulating stormwater discharges within the NPDES program due to the water quality impacts of stormwater, the variable nature of stormwater, the large number of stormwater discharges, and the limited resources of permitting agencies. The EPA undertook numerous regulatory actions, which resulted in extensive litigation, in an attempt to address these unique discharges.
The EPA's Silvicultural Rule (40 CFR 122.27) predates the 1987 amendments to the Clean Water Act that created section 402(p) for stormwater controls. The Agency defined silvicultural point source as part of the Silvicultural Rule to specify which silvicultural discharges were to be included in the NPDES program. The rule defines silvicultural point source to mean any “discernible, confined and discrete conveyance related to rock crushing, gravel washing, log sorting, or log storage facilities which are operated in connection with silvicultural activities and from which pollutants are discharged into waters of the United States” and further explains that “the term does not include non-point source silvicultural activities such as nursery operations, site preparation, reforestation and subsequent cultural treatment, thinning, prescribed burning, pest and fire control, harvesting operations, surface drainage, or road construction and maintenance from which there is natural runoff.”
In 1990, following the 1987 amendments that directed the Agency to develop regulations requiring permits for large municipal separate storm sewer systems and stormwater “discharges associated with industrial activity,” the EPA promulgated the Phase I stormwater regulations. (55 FR 47990, November 16, 1990). The EPA defined in the Phase I regulations “storm water discharge associated with industrial activity” which is not defined by the Act. In describing the scope of the term “associated with industrial activity,” several members of Congress explained in the legislative history that the term applied if a discharge was “directly related to manufacturing, processing or raw materials storage areas at an industrial plant.” (Vol. 132 Cong. Rec. H10932, H10936 (daily ed. October 15, 1986); Vol. 133 Cong. Rec. H176 (daily ed. January 8, 1987)). The Phase I rule clarified the regulatory definition of “associated with industrial activity” by adopting the language used in the legislative history and supplementing it with a description of various types of areas (e.g., material handling sites, sites used for the storage and maintenance of material handling equipment, etc.) that are directly related to an industrial process and to industrial facilities identified by the EPA. The supplemental language in the Phase I rule also includes the term “immediate access road.” The EPA considers “immediate access roads” to refer to roads which are exclusively or primarily dedicated for use by the industrial facility.
In developing the second phase of stormwater regulations, the EPA submitted to Congress in March 1995 a report that presented the nature of stormwater discharges from municipal and industrial facilities that were not already regulated under the Phase I regulations (U.S. Environmental Protection Agency, Office of Water. 1995. Storm Water Discharges Potentially Addressed by Phase II of the National Pollutant Discharge Elimination System Storm Water Program: Report to Congress. Washington, DC. EPA 833-K-94-002). On December 8, 1999, the EPA published the Phase II stormwater regulations to address stormwater discharges from small municipal separate storm sewer systems and construction sites that disturb one to five acres. (64 FR 68722, December 8, 1999). The EPA retains the authority to designate additional stormwater discharges for regulation at a later date under either CWA section 402(p)(2)(E) or 402(p)(6).
The Phase II regulations for stormwater controls were challenged in
More recently, in
In response to the partial remand under
In the interim, the EPA notes that Congress has directed that permits are not required for stormwater discharges for logging roads. Under the continuing resolution passed in September, 2012, until March 27, 2013, the Administrator may not require an NPDES permit or directly or indirectly require any state to require a permit, for discharges of stormwater runoff from roads, the construction, use, or maintenance of which are associated with silvicultural activities.
The EPA proposed to revise 40 CFR 122.26(b)(14)(ii) to clarify that for the purposes of defining stormwater discharges associated with industrial activity, the only activities under SIC code 2411 that are “industrial” are rock crushing, gravel washing, log sorting, and log storage. This revision does not remove any existing exemptions. Though the existing language in 40 CFR 122.26(b)(14)(ii) excepts SIC code 2434, wood kitchen cabinets, the wood kitchen cabinets category remains covered in a separate subsection.
The EPA received 85 comment letters on its “Notice of Proposed Revisions to Stormwater Regulations to Clarify That an NPDES Permit is not Required for Stormwater Discharges From Logging Roads” (77 FR 53834, September 4, 2012). The Agency had previously announced its plan to propose these revisions in an earlier notice, “Notice of Intent to Revise Stormwater Regulations To Specify That an NPDES Permit is Not Required for Stormwater Discharges From Logging Roads and To Seek Comment on Approaches for Addressing Water Quality Impacts From Forest Road Discharges” (77 FR 30473, May 23, 2012). While the EPA has reviewed and is considering the comments received in response to the May 23 Notice of Intent, the Agency explained in its September 4 proposal that the EPA is not developing responses to those comments as part of this rulemaking.
The EPA has reviewed and considered all of the comments received on the proposed revisions. Many commenters expressed support for the EPA's proposal. Most agreed with the objective to clarify the applicability of Phase I stormwater regulations but some suggested alternate language or approaches to reach that objective. For example, some suggested that the EPA simply state in its regulations that stormwater discharges from logging roads do not require a NPDES permit. Others recommended that the EPA assert that logging roads are nonpoint sources and therefore would not require a NPDES permit.
The EPA believes that the final language clarifies the applicability of Phase I stormwater regulations to stormwater discharges from logging roads. The final language indicates explicitly which facilities are included in the definition of stormwater discharges “associated with industrial activity” (i.e., “Facilities classified within Standard Industrial Classification 24, Industry Group 241
Many commenters suggested that the EPA delay finalizing the rule until after the Supreme Court rules on
Some commenters disagreed with the EPA's proposal, asserting that at least a subset of stormwater discharges from logging roads is truly industrial in nature and that those discharges should require NPDES permits. The EPA clarifies the applicability of Phase I stormwater regulations to stormwater discharges from logging roads and the Agency's rationale in section II.B of this preamble. As the EPA notes, the Agency did not intend logging roads themselves to be regulated as industrial facilities and its view has not changed since EPA first issued the Phase I stormwater rule. The EPA is revising that rule to clarify the Agency's original intent.
Some commenters asserted that the water quality impacts of stormwater discharges from logging roads and other forest roads are well-documented and suggested that the Agency should regulate them. Other commenters pointed to existing programs and suggested that a national regulation is unnecessary. Some asserted that existing state, federal, and tribal programs are insufficient to protect water quality. Others commented that the Agency already has all of the information it needs in order to regulate stormwater discharges from forest roads and suggested that if information gaps remain, the Agency should specify what information is needed and indicate on what schedule that information will be collected.
The EPA is not proposing new regulations for stormwater discharges from forest roads, including logging roads, at this time. While the EPA has not developed a specific schedule for addressing stormwater discharges from forest roads, the Agency notes that, in response to the partial remand under
The EPA has made no revisions to the proposed rule. The EPA is revising 40 CFR 122.26(b)(14)(ii) to clarify that for the purposes of defining stormwater discharges associated with industrial activity, the only activities under SIC code 2411 that are “industrial” are rock crushing, gravel washing, log sorting, and log storage. This revision does not remove any existing exemptions. Though the existing language in 40 CFR 122.26(b)(14)(ii) excepts SIC code 2434, wood kitchen cabinets, the wood kitchen cabinets category remains covered in a separate subsection.
As discussed in this preamble, the EPA did not intend logging roads themselves to be regulated as industrial facilities, but, in light of
The final rule clarifies existing regulations and does not impose new regulatory requirements. As a result this action has no economic, public health, or environmental impacts.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action.” Accordingly, the EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in response to OMB recommendations have been documented in the docket for this action.
This action does not impose any new information collection burden as it serves only to clarify existing regulations. However, the Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations (40 CFR 122.26) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2040-0004. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business “as defined by the Small Business Administration's (SBA)
After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This rule will not impose any requirements on small entities. Rather, the rule clarifies that stormwater discharges from logging roads do not constitute stormwater discharges associated with industrial activity and that an NPDES permit is not required for these stormwater discharges.
This action contains no federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for state, local, or tribal governments or the private sector. This action imposes no enforceable duty on any state, local or tribal governments or the private sector.
This action does not have federalism implications. This action clarifies existing regulations and has no economic impact. Thus, it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government as specified in Executive Order 13132 (64 FR 43255, November 2, 1999).
This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). Thus, Executive Order 13175 does not apply to this action.
The action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in Executive Order 12866. Moreover, this action clarifies existing regulations and has no economic, public health, or environmental impacts.
The action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Additionally, the change does not involve the installation of treatment or other components that use a measurable amount of energy.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs the EPA to provide Congress, through OMB, explanations when the EPA decides not to use available and applicable voluntary consensus standards.
The action clarifies existing regulations and makes no change to existing standards.
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission. Agencies must do this by identifying and addressing as appropriate any disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
The EPA has determined that this action does not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. The action clarifies existing regulations and has no economic, public health, or environmental impacts.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the
Environmental protection, Water pollution control.
For the reasons set out in the preamble, 40 CFR part 122 is amended as follows:
33 U.S.C. 1251 et seq.
(b) * * *
(14) * * *
(ii) Facilities classified within Standard Industrial Classification 24, Industry Group 241 that are rock crushing, gravel washing, log sorting, or log storage facilities operated in connection with silvicultural activities defined in 40 CFR 122.27(b)(2)-(3) and Industry Groups 242 through 249; 26 (except 265 and 267), 28 (except 283), 29, 311, 32 (except 323), 33, 3441, 373;