[Federal Register Volume 82, Number 133 (Thursday, July 13, 2017)]
[Notices]
[Pages 32357-32359]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-14731]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-9964-85-Region 1]
Notice of EPA's Action To Postpone the Effective Date of the EPA
Region 1 Clean Water Act National Pollutant Discharge Elimination
System General Permits for Stormwater Discharges From Small Municipal
Separate Storm Sewer Systems in Massachusetts
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: The Environmental Protection Agency (EPA) is providing notice
that it took action to postpone the effective
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date of its Clean Water Act (CWA) National Pollutant Discharge
Elimination System (NPDES) General Permits for Stormwater Discharges
from Small Municipal Separate Storm Sewer Systems (MS4s) in
Massachusetts. By its action, EPA postponed the July 1, 2017 effective
date of the permit for one year, to July 1, 2018. EPA's postponement is
available at: https://www3.epa.gov/region1/npdes/stormwater/MS4_MA.html.
DATES: Postponement date is June 29, 2017.
FOR FURTHER INFORMATION CONTACT: Thelma Murphy, Stormwater and
Construction Permits Section OEP 06-4, Environmental Protection Agency,
5 Post Office Square--Suite 100, Boston, Massachusetts 02109-3912;
617.918.1615; email address: [email protected].
SUPPLEMENTARY INFORMATION: As stated in its postponement action,
pursuant to section 705 of the Administrative Procedure Act (APA) (5
U.S.C. 705), and for the reasons stated below, the EPA postponed the
effective date of the EPA-issued General Permits for Stormwater
Discharges from Small Municipal Separate Storm Sewer Systems (MS4s) in
Massachusetts (Massachusetts permit) from July 1, 2017 to July 1, 2018.
I. Background
EPA Region 1 issued the Massachusetts permit on April 4, 2016, with
an effective date of July 1, 2017. Region 1 issued the previous general
permit for Small MS4s in Massachusetts in 2003, which expired and was
administratively continued for MS4s covered under that permit in 2008.
EPA Region 1 issued the 2016 Massachusetts permit following issuance of
the Commonwealth's CWA section 401 certification by the Massachusetts
Department of Environmental Protection (MassDEP). The final 2016
permits were jointly issued by EPA and MassDEP, along with EPA's 632-
page Response to Comments document.\1\
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\1\ Although the Region issues NPDES permits in Massachusetts,
the Commonwealth maintains separate permitting authority under
Massachusetts law. See Mass. Gen. Laws ch. 21, Sec. 43; Mass. Code
Regs. tit. 314. When the Region issues an NPDES permit in
Massachusetts, MassDEP typically jointly issues a permit under state
law. See In re City of Marlborough, 12 E.A.D. 235, 236 n.3 (EAB
2005); In re Westborough, 10 E.A.D. 297, 300 n.2 (EAB 2002). EPA's
action in postponing the effective date of the Massachusetts permit
does not affect the requirements of the permit issued by MassDEP
under Massachusetts law.
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The Massachusetts Permit allows eligible small MS4s in
Massachusetts to obtain NPDES permit coverage for their stormwater
discharges. Approximately 260 towns and other municipalities, which
include a number of state and federally owned entities such as
colleges, Veterans Administration hospitals, prisons and military bases
in Massachusetts, are eligible to seek coverage under the permit.
Several parties filed petitions for review of the Massachusetts
permit in the U.S. Court of Appeals for the D.C. Circuit. Petitioners
are the Center for Regulatory Reasonableness (CRR), Conservation Law
Foundation/Charles River Watershed Association, National Association of
Homebuilders, the City of Lowell, and the Town of Franklin. The D.C.
Circuit has consolidated these petitions. See Center for Regulatory
Reasonableness, et al. v. EPA, No. 16-1246 (D.C. Circuit).
On April 21, 2017, the D.C. Circuit granted CRR's motion to
indefinitely stay the briefing deadlines. Under the original briefing
schedule, petitioners would have filed their opening briefs on May 8,
2017. CRR cited several justifications in its motion to stay the
original briefing deadlines, including providing time for the New
Hampshire small MS4 general permit's judicial review period to end,
providing time to address certain questions about the administrative
record, and deadlines that the petitioners were facing in non-related
litigation. EPA did not oppose this motion. Motions to govern further
proceedings are due July 20, 2017.
On May 26, 2017, three of the petitioners (the Massachusetts
Coalition of Water Resources, the City of Lowell, and the Town of
Franklin, hereafter the ``Requestors'') submitted a letter asking EPA
Region 1 to postpone the July 1, 2017 effective date for one year
pending judicial review under section 705 of the APA.
II. Discussion
Upon consideration of the request, and for the reasons set forth
below, EPA determined that justice requires postponement of the
effective date.\2\ Therefore, pursuant to APA section 705, EPA
postponed the July 1, 2017 effective date for one year to July 1, 2018.
EPA is providing notice of this postponement to the public, including
all petitioners, all commenters, and all known potential permittees.
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\2\ The Region 1 Regional Administrator is authorized to act on
behalf of EPA in this matter pursuant to 40 CFR 124.19(l), which
grants regional administrators the authority to issue final NPDES
permit decisions, which includes determining when a permit will take
effect.
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A. The Request
The Requestors' May 26 letter asked EPA to postpone the July 1,
2017 effective date of the Massachusetts permit in the ``interests of
justice'' because, the Requestors asserted, (1) the permit represents a
significant expansion of EPA's CWA authority and the court must decide,
among other things, whether EPA acted within its bounds by requiring
that discharges meet water quality standards in addition to meeting the
Maximum Extent Practicable (``MEP'') standard; (2) it will align the
Massachusetts permit's effective date with the effective date of the
virtually identical New Hampshire small MS4 general permit, which was
issued in January 2017, raises the same legal issues, and has also been
challenged in the D.C. Circuit (as well as the 1st Circuit); and (3)
although irreparable harm is not required for EPA to postpone the
effective date under APA section 705, without it the towns will suffer
irreparable harm by immediately expending resources that may ultimately
prove to be unnecessary and wasted to avoid non-compliance and risk of
enforcement.
B. Analysis
In postponing the effective date of the Massachusetts permit, EPA
stated in its findings that justice requires postponing the July 1,
2017 effective date of the Massachusetts permit for one year pending
judicial review. EPA would like to explore the use of alternative
dispute resolution (ADR) in this case in order to engage with the
various petitioners and jointly see if there might be a resolution that
could avoid the need for litigation. EPA believes that it is fair to
postpone the effective date of the permit so that eligible MS4s in
Massachusetts that could seek coverage under the permit would not be
subject to enforceable permit terms and conditions under the
Massachusetts permit that could change as a result of ADR. Postponing
the effective date for one year pending judicial review should give EPA
ample time to determine what, if any, changes are appropriate in the
permit and to determine next steps.
Pending any such decision by the Agency, postponing the effective
date of the permit for one year will postpone certain obligations--and
the associated costs--that would otherwise be incurred in the first
year's implementation of the Massachusetts permit. Such costs would
include monetary and staff time for preparation and submittal of a
Notice of Intent (NOI) to be covered by the permit. Also in the first
year, in the absence of the postponement of the permit's
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effective date, the MS4s would have to update portions of their
existing Stormwater Management Plans. Given the status of the
litigation, the possibility that the parties will engage in ADR and
that the Agency may decide to make changes to the permit, the Agency
believes it is reasonable to defer imposition of these obligations and
costs for the period of the postponement.
Moreover, postponing the effective date by one year will have the
benefit of matching the Massachusetts permit's effective date with the
effective date of the New Hampshire small MS4 general permit, which EPA
Region 1 issued on January 18, 2017 and will take effect on July 1,
2018. Various parties have filed petitions for review of the New
Hampshire permit in the D.C. Circuit, as well as one petition in the
U.S. Court of Appeals for the First Circuit. EPA is also interested in
exploring the use of ADR in that case. EPA has filed a motion with the
First Circuit to transfer the petition that was filed there to the D.C.
Circuit so that all of the New Hampshire petitions may be consolidated.
Aligning the effective dates could promote efficiency in the resolution
of both cases by facilitating the development of a unified ADR process
that would address those issues raised in both permit appeals.
C. Conclusion
Based on the above, EPA concluded that justice requires
postponement of the effective date. Thus EPA postponed the July 1, 2017
effective date of the Massachusetts permit for one year to July 1,
2018.
Dated: June 30, 2017.
Ken Moraff,
Acting Deputy Regional Administrator, EPA Region 1.
[FR Doc. 2017-14731 Filed 7-12-17; 8:45 am]
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