DEPARTMENT OF THE NAVY
OFFICE OF THE ASSISTANT SECRETARY
(INSTALLATIONS AND ENVIRONMENT)
1000 NAVY PENTAGON
WASHINGTON, D.C. 20350-1000


APR 7 1998

MEMORANDUM FOR Storm Water Proposed Rule,
Comment Clerk-W-97-12,
Water Docket, Mail Code 4101,
U.S. Environmental Protection Agency,
Washington, DC 20460

Subj: DOD COMMENTS ON STORM WATER PHASE II PROPOSED RULE

Ref: NATIONAL Pollutant Discharge Elimination System- Proposed Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges; Proposed Rule, 63 FR 1535, 9 January 1998. Docket number W-97-12

As the lead service in the Department of Defense (DOD) for issues pertaining to the Clean Water Act, the Department of Navy is providing herewith DOD's comments regarding the Environmental Protection Agency's (EPA's) proposed revisions to the water pollution control program addressing storm water discharges, published in the Federal Register, 63 FR 1535, 9 January 1998.

Although EPA should consider all of the comments in the attachment to this letter in its Storm Water Phase II rulemaking, among those that are especially important to DoD are the following:

As always, DoD will strive to be a role model in environmental stewardship and compliance within the constraints of our primary mission, military readiness, and budgetary constraints.

We would be happy to discuss our comments further with you, or to address any questions you may have on theses comments. My point of contact in the Office of the Chief of Naval Operations is Maude Bullock who can be reached at (703) 602-1738 or be e-mail at bullockm@n4.opnav.navy.mil. Thank you, in advance, for your consideration of our comments and concerns.

My point of contact is CDR Web Freeman, (703) 588-6682, fax (703) 588-8428, e-mail: freeman.webb@hq.navy.mil.

 

ELSIE L. MUNSELL
Deputy Assistant Secretary of the Navy
(Environment and Safety)

Enclosure: Comments to Storm Water Phase II Proposed Rule 3 Apr 98

Copy to:
ODUSD (ES)
ODUSD (ES EQ/CM)
HQDA, ACSIM DAIM-ED-R
SAF/MIQ


U.S. DEPARTMENT OF DEFENSE
CLEAN WATER ACT SERVICES STEERING COMMITTEE

Comments to Storm Water Phase II Proposed Rule
3 April 1998

1. Clarify Definition of Population With Respect to DoD Facilities

Comment: The Storm Water Phase II Proposed Rule does not provide guidance for determining the population of an installation with respect to transient personnel. DoD installations routinely experience significant changes in "population" due to the daily influx of base employees and the sporadic influx of personnel engaged in military training activities.

Recommendation: The DoD recommends that The EPA define "population", with respect to federal facilities, as follows: "For purposes of DoD installations, population means the total number of individuals that maintain residential living quarters within the installation's boundary."

Reference: Exhibit 1 to Subpart B.- Summary of Coverage of Small Municipal Separate Storm Sewer Systems Under The NPDES Storm Water Program (63 Fed. Reg. at 1636).

2. Clarify Population Threshold

Comment: EPA invited comments regarding a population threshold of 1,000 people for a municipality or an alternate population of 5,000. In EPA's request for comment on this issue, EPA failed to note whether it was soliciting comment on total population, or population density (persons per square mile). It is the Department of Defense's (DoD's) interpretation that EPA is requesting comment on using a population density of 1000 versus 5000 people per square mile. However, clarification on this issue is necessary.

Recommendation: Based upon this interpretation, DoD believes that 1000 people per square mile or a population of less than 10,000 people is the appropriate threshold. Furthermore, DoD recommends that this threshold be established as an exemption from the storm water requirements rather than as a baseline for the granting of a waiver by the NPDES permitting authority. In addition, EPA should specify whether the population threshold is additive for a DoD facility that is not contiguous (e.g., separated by a body of water) and that has separate storm water discharge collection systems.

Reference: Sections II.A.1 (63 Fed. Reg. at 1548) and II.G.3. (63 Fed. Reg. at 1564).

3. Clarify the meaning of "Public" for Purposes of Instituting Minimum Control Requirements

Comment: The EPA is proposing to regulate federal facilities in the same manner as municipalities, and to include federal facilities in the definition of regulated small municipal separate storm sewer systems. The equation of a federal facility to a municipality raises questions concerning the regulatory responsibilities of federal facilities with respect to public education and outreach, and public involvement/participation. The EPA should clarify what is meant by the "public" with respect to DoD installations.

Recommendation: Define "public", with respect to DoD installations, as the resident and employee population within the fence line of the facility. If this language is not incorporated as a defined term in the regulations, then, in the alternative, include language to this effect in the preamble to the final rule.

Reference: Regulatory Language in Today's Proposal (63 Fed. Reg. at 1567).

4. Acknowledge that a "Municipality" is Different From a "Federal Facility."

Comment: Under the proposed rule, DoD installations will have to institute the minimum control measures in a manner similar to a municipality. Municipalities typically have self-governing authority to enact and enforce ordinances to implement minimum control requirements and appropriate Best Management Practices (BMPs). However, it is unclear how these Storm Water Phase II requirements would be implemented by a military installation that has very different governing and funding mechanisms. For example, may DoD installation regulate itself by the use of base operating instructions? And, if construction is performed by a contractor, will a contract substitute for an ordinance or other regulatory mechanism, even if the government cannot provide for stipulated penalties for instances of non-compliance but is limited, instead, to those remedies that may be invoked under the Federal Acquisition Regulation?

Recommendation: DoD recommends that the answer to both of these questions be affirmative, and that base operating instructions and contracting documents be the primary control mechanisms for implementation of this rule. Furthermore, EPA should clarify in the preamble to the final rule that Federal facilities are different from municipalities for purposes of instituting minimum control requirements.

Reference: Section II.A.2. (63 Fed. Reg. 1550-1551); Proposed 122.34(b) (63 Fed. Reg. at 1639-1641).

5. Recognize Coverage of Multiple Permitted Activities

Comment: In the preamble to the proposed rule, EPA requests comments on the option of allowing an owner or operator of a construction firm to apply for coverage once for all of the firm's activities in one jurisdiction for the term of the NPDES permit. Existing storm water regulations neither specifically permit nor prohibit coverage for multiple small-scale construction activities on a single installation over the course of a year by providing one notice of intent that describes all such activities. The EPA raises several concerns with regard to structuring notices in this fashion, including, among other things, the identification of responsible parties on-site, site-by-site identification of construction discharges for tracking compliance with permit conditions, and treating large and smaller construction sites as subject to the same requirements.

Recommendation: DoD agrees that federal facilities should be able to submit one Notice of Intent (NOI) for all construction activities. This process would allow DoD to meet its funding request requirements and to reduce the administrative burden required to prepare individual NOIs for each project. EPA should recognize that DoD installations may apply for coverage for multiple small-scale construction activities on a single installation over the course of a year by providing one notice of intent that describes all such activities. Each DoD installation would be the responsible party for all construction covered under such a combined notice-of-intent. Individual supplemental start date notices could be provided as they become available to enable regulators to monitor compliance, and projects presenting unique concerns could be addressed separately or at least be described more fully in the yearly notice. This approach takes into account DoD funding mechanisms, and the cost savings/efficiencies from such an approach are in line with EPA's recognition of its continuing imperative to ensure that environmental regulations accomplish statutory objectives in the least burdensome and most cost-effective fashion.

Reference: Section II.H.3.a.iv. (63 Fed. Reg. at 1576-1577).

6. Adopt a 180-day Deadline for Designating Municipal Separate Storm Sewer Systems (MS4s)

Comment: The EPA requested comment on whether 60 days is adequate time for MS4s designated by the permitting authority on a local basis to prepare a NOI or permit application, or if a 90-day time period would be more appropriate. The DoD believes that a period of 180 days is appropriate to prepare an individual permit application, because it is consistent with permit filing periods in other regulations. In a related issue, EPA is requesting comment on whether 60 days is enough time to submit an NOI after the facility has been notified by the permitting authority that it is subject to a general permit once one has been made available.

Recommendation: The DoD believes that a 180-day period to submit an NOI in both circumstances is appropriate because it is consistent with permit filing periods in other environmental regulations.

Reference: Section II.H.3.f. (63 Fed. Reg. at 1581).

7. Retain the No-Exposure Exemption in the Final Rule

Comment: The DoD strongly supports the principle of a mechanism to exempt otherwise regulated activities, where a facility certifies that there is "no-exposure of industrial activities to storm water."

Recommendation: The DoD recommends that EPA incorporate the no-exposure exemption, as proposed, into the final rule.

Reference: Section II.J. (63 Fed. Reg. at 1590-1594).

8. Allow Large and Medium Municipal Separate Storm Sewer Systems Designate Physically Interconnected Small Municipal Separate Storm Sewer Systems

Comment: EPA requires NPDES permitting authorities to designate any owner of a MS4 contributing substantially to the pollutant loading of a physically interconnected system.

Recommendation: DoD recommends that EPA allow affected large and medium MS4s to petition the NPDES authority to designate interconnected small MS4s if they contribute "substantially to storm water pollutant loading."

Reference: Section II.G.2.c. (63 Fed. Reg. at 1563).

9. Provide Guidance on Submission of a Notice of Intent

Comment: For construction activity at sites of between 1 and 5 acres in areas covered by a general permit, EPA is proposing that no NOI need be submitted. Neither the preamble nor the proposed rule suggests how notification of construction activity would otherwise be made, leaving this to the discretion of the local permitting authority. This practice could result in differing notification requirements, increasing the burden to federal agencies' compliance activities nationwide. Also, if a BMP must be included in a permit application or an NOI, and the menu of BMPs has not been developed, then how will a facility select control measures?

Recommendation: The EPA should specify a system of notification, under a general permit, when an NOI is not required by the permitting authority.

Reference: Section II.G.4. (63 Fed. Reg. at 1565).

10. Eliminate Alternative Approaches to a Permitting Program

Comment: The EPA has received proposals to allow for alternatives to a NPDES Permit program to be used by states and tribes. The EPA opposes those alternative proposals due to a lack of national consistency, increased confusion, and the requirement for states and tribes to certify each program as being equivalent to EPA program. The EPA does, however, agree that these alternatives could work, and invites comments.

Recommendation: DoD opposes alternatives to the proposed NPDES program for states and tribes because DoD requires a nationally consistent program for purposes of training requirements, compliance and regulatory tracking, and to maintain the efficiency of nationwide operations.

Reference: Section II.C.2.a. (63 Fed. Reg. at 1555-1557).

11. Develop Criteria for Sharing the Monitoring Burden

Comment: EPA proposes that monitoring be spread out over the watershed with only a portion of the dischargers required to monitor.

Recommendation: The EPA should develop guidance for sharing the burden of monitoring among regulated entities within the watershed.

Reference: II.L.4. (63 Fed. Reg. 1596).

12. Eliminate Specificity in Monitoring Sample Types

Comment: The specificity currently in the proposed rule, requiring the collection of flow-weighted composite samples, is unnecessary and unduly restrictive and, depending on the conditions of discharge flows, may not result in added value.

Recommendation: DoD recommends that the regulator be afforded the flexibility to specify the types of samples to be collected based on information gathered in the field.

Reference: Section II.L.1.a. (63 Fed. Reg. at 1595).

13. Clarify "Substantial Contribution" and "Ineffective Control"

Comment: Proposed 40 CFR 123.35(b)(4) requires the permitting authority to designate any entity that contributes substantially to storm water pollutant loadings. This could mean that each facility would be required to conduct a comprehensive analysis to determine whether it "contributes substantially" to the discharge of a pollutant. Proposed 40 CFR 123.35(b)(1) requires each permitting authority to develop the criteria for determining whether a facility has the potential to exceed water quality standards. The proposed rule requires the permitting authority to identify "ineffective control of water quality concerns by other programs." Under this proposal, it would be necessary to determine whether other regulatory programs have failed to maintain water quality. This could potentially require reexamination of existing Resource Conservation Recovery Act (RCRA) and other permits, consent orders, and other restrictions, causing expense to both the facility and the permitting authority. Further, there does not appear to be a mechanism for resolving any discovered differences. It should not be the responsibility of any federal facility that is in compliance with regulatory requirements to have the burden of demonstrating the efficacy of each regulation to which it is subject.

Recommendation: EPA should specify that the determination of the "ineffective control" is the responsibility of regulators, in consultation with the regulated community and the public. Furthermore, DoD recommends that EPA define the term "contribute substantially to storm water pollutant loading," and specify how each permitting authority will determine who is "contributing substantially".

Reference: Proposed 123.35(b)(4) (63 Fed. Reg. at 1642-1643).

14. Abandon Revised Regulation Format

Comment: The EPA requested comment concerning the new question-and-answer format for proposed regulations. This new format, while useful in helping the regulated community understand the new regulation, is not consistent with the existing structure and makes it difficult to understand what is actually being required. The purpose of the preamble to any rule is to explain, in dialogue form, what the regulations mean and why they were needed. To extend this to the wording of the rule itself only adds confusion and reduces the precision of the regulation.

Recommendation: Abandon the new regulation format.

15. Revise Annual Report

Comment: The permit requirement for annual reports is unduly burdensome and will add significant cost in report preparation with no significant benefit.

Recommendation: DoD recommends that the permittee be required to submit a report only after the first year and, thereafter, maintain the information required to meet permit conditions. If the permitting authority has a concern about a specific system, installation, or watershed, the regulator can inspect or request a copy of the necessary information.

Reference: Section II.H.3.c.ii. (63 Fed. Reg. at 1580-1581).

16. Provide Guidance on Waivers

Comment: Waivers for construction activities are proposed to be available to municipalities (including federal facilities) of less than 1,000 people that can demonstrate that they are not contributing to water quality problems, and certifying as such to the permitting authority. The preamble and the proposed rule are not specific in how to certify that a facility is not contributing to water quality problems.

Recommendation: Because certification could vary among various permitting authorities, EPA should provide guidance on this issue in the proposed rule, establishing a national standard.

Reference: Sections II.G.2.d.; II.I.2.b. (63 Fed. Reg. at 1564-1565, 1583-1585).

17. Position versus Person Responsibility

Comment: EPA proposed that persons who would implement the program be mentioned in the Notice of Intent.

Recommendation: EPA should require only the position with installation authority and responsibility be required to submit the NOI or permit application.

18. Federal Facilities as Models for Municipal and Private Sector Facilities

Comment: EPA states that "... Federally owned and operated facilities could act as models for municipal and private sector facilities and implement or test state-of-the-art management practices and control measures ..." DoD does, and will continue to, strive towards being a role model in environmental stewardship and compliance within the context of our primary mission, military readiness, and budgetary constraints.

Reference: Section II.D.6. (63 Fed. Reg. 1558).

19. Address Economic Effects of Rulemaking of Federal Facilities

Comment: EPA did not assess the economic effect of this proposed rule on federal Facilities.

Recommendation: EPA should analyze the administrative and implementation effects the proposed rule would have on Federal agencies and their facilities.

Reference: Section IV (63 Fed. Reg. at 1598-1603; Section VII.A. (63 Fed. Reg. 1605-1607).


U.S DEPARTMENT OF DEFENSE
CLEAN WATER ACT SERVICES STEERING COMMITTEE

Comments to Phase II Storm Water Proposed Rule

Revised Draft (2 April 98)

1. Clarify Definition of Population With Respect to DoD Facilities

Comment: The Storm Water Phase II Proposed Rule does provide guidance for determining the population of a facility with respect to transient population. DoD facilities, routinely experience significant changes in "population" due to military training activities.

Recommendation: DoD recommends that EPA define "population", with respect to DoD facilities, as follows: For purposes of DoD installations, population means the total number of individuals that maintain residential living quarters within the installation boundary.

2. Population Threshold

Comment: The EPA invited comments regarding a population threshold of 1,000 people for a municipality or an alternate population of 5,000. In EPA's request for comment on this issue, the EPA failed to note whether it was soliciting comment on total population, or population density (persons per square mile). Clarification on this issue is necessary. However, DoD's interpretation is that the population density of 1000 versus 5000 people per square mile is what the EPA is requesting comment on.

Recommendation: Based upon this interpretation, DoD believes that 1000 people per square mile or a population of less than 10,000 people is the appropriate threshold. Furthermore, DoD recommends that this threshold be established for exemption from the storm water requirements rather than as a baseline for the granting of a waiver by the NPDES permitting authority. In addition, EPA should specify whether the population threshold is additive for a DoD facility that is not contiguous (e.g., separated by a body of water) and that has separate storm water discharge collection systems.

3. Clarify the meaning of "Public" for Purposes of instituting Minimum Control Requirements

Comment: EPA is proposing to regulate federal facilities in the same manner as municipalities, and to include federal facilities in the definition of regulated small municipal separate storm sewer systems. The equation of a federal facility to a municipality raises questions concerning the regulatory responsibilities of federal facilities with respect to public education and outreach, and public involvement/ participation. The EPA needs to clarify should clarify what is meant by the "public" with relation to DoD installations.

Recommendation: Define "public" with respect to DoD facilities as the resident and employee population within the fence line of the facility. If this language is not incorporated as a defined term in the regulations, than in the alternative, include language to this affect in the preamble to the final rule.

4. Acknowledge that a "Municipality" is Different From a "Federal Facility."

Comment: Under the proposed rule, DoD facilities will have to institute the minimum control measures in a manner similar to a municipality. Municipalities typically have self-governance authority to enact ordinances or regulations to implement minimum control requirements and appropriate BMPs. However, it is unclear how these Storm Water Phase II requirements would be implemented by a military installation that has very different governance and funding mechanisms For example, may the DoD installation regulate itself? If the construction activity is performed by a contractor, may a contract substitute for an ordinance or other regulatory mechanism, even if the government cannot provide for stipulated penalties for instances of non-compliance but is limited, instead, to those remedies that may be invoked under the Federal Acquisition Regulation? DoD recommends that the answer to both of these be affirmative.

Recommendation: The EPA make clear in the preamble to the final rule that federal facilities are different than municipalities for purposes of instituting minimum control requirements.

3. Coverage of Multiple Permitted Activities

Comment: Existing storm water regulations neither specifically permit nor prohibit coverage for multiple small-scale construction activities on a single installation over the course of a year by providing one notice of intent that describes all such activities. In the preamble to the proposed rule, however, EPA requests comments on the option of allowing an owner or operator of a construction firm to apply for coverage once for all of the firm's activities in one jurisdiction for the term of the NPDES permit. EPA raises several concerns with regard to structuring notices in this fashion, including, among other things, the identification of responsible parties on-site, site-by-site identification of construction discharges for tracking compliance with permit conditions, and treating large and smaller construction sites as subject to the same requirements.

Recommendation: DoD recommends that the EPA recognize that DoD installations may apply for coverage for multiple small-scale construction activities on a single installation over the course of a year by providing one notice of intent that describes all such activities. Each DoD facility would be the responsible party for all construction covered under a combined notice-of-intent. Individual supplemental start date notices could be provided as they become available to enable regulators to monitor compliance, and projects presenting unique concerns could be addressed separately or at least be described more fully in the yearly notice. This approach takes into account DoD funding mechanisms, and the cost savings/efficiencies from such an approach are in line with EPA's recognition of its continuing imperative to assure that environmental regulations accomplish statutory objectives in the least burdensome and most cost-effective fashion.

4. Deadline for Designating MS4s

Comment: EPA requested comment on whether 60 days is adequate time for MS4s designated by the permitting authority on a local basis to prepare a notice of intent (NOI) or permit application, or if a 90 day time period would be more appropriate. DoD believes that a period of 180 days is appropriate to prepare an individual permit application, because it is consistent with permit filing periods in other regulations. In a related issue, EPA is requesting comment on whether 60 days is enough time to submit an NOI after the facility has been notified by the permitting authority that it is subject to a general permit once one has been made available.

Recommendation: DoD believes that a 180-day period to submit an NOI in both circumstances is appropriate because it is consistent with permit filing periods in other environmental regulations.

5. Retain the No-Exposure Exemption in the Final Rule

Comment: DoD strongly supports the principle of a mechanism to exempt otherwise regulated activities, where a facility certifies that there is "no-exposure of industrial activities to storm water."

Recommendation: DoD recommends that EPA incorporate the no-exposure exemption as proposed into the final rule

6. Allow Large and Medium Municipal Separate Storm Sewer Systems Designate Physically Interconnected Small Municipal Separate Storm Sewer Systems

Comment: EPA should allow large and medium MS4s to petition local permitting authorities to designate interconnected MS4/federal facilities under their existing permit if they contribute substantially to storm water pollutant loading.

Recommendation: DoD recommends that in addition to requiring NPDES authorities to designate any owner of a MS4 contributing substantially to the pollutant loading of a physically interconnected system, that the affected large or medium MS4 also be allowed to petition the NPDES authority to designate the interconnected small MS4 based on "contributing substantially to storm water pollutant loading."

7. Notice of Intent (NOI)

Comment: For construction activity at sites of between 1 and 5 acres in areas covered by a general permit, EPA is proposing that no NOI need be submitted. Neither the preamble nor the proposed rule suggests how notification of construction activity would otherwise be made, leaving this to the discretion of the local permitting authority. This practice could result in differing notification requirements, adding burden to federal agencies' compliance activities nationwide. Also, if a BMP must be included in a permit application or an NOI, and the menu of BMPs has not been developed, then how will a facility select control measures?

Recommendation: EPA should specify a system of notification under a general permit when an NOI is not required by the permitting authority.

8. Eliminate Alternative Approaches to Permitting Program

Comment: EPA has received proposals to allow for alternatives to an NPDES Permit program to be used by states and tribes. EPA opposes those alternative proposals due to a lack of national consistency, increased confusion, and the requirement for states and tribes to certify each program as being equivalent to the EPA program. EPA does, however, agree that these alternatives could work, and invites comments.

Recommendation: DoD opposes alternatives to the proposed NPDES program for states and tribes because the DoD requires a nationally consistent program because of training requirements, compliance and regulatory tracking, and maintaining the efficiency of nationwide operations.

9. Frequence of Monitoring

Comment: EPA proposes that monitoring be conducted during the second period of permit issuance (permits are expected to be in effect for 5 years), and that it be spread out over the watershed with only a portion of the dischargers required to monitor.

Recommendation: EPA should develop criteria for sharing the burden of monitoring, since DoD is held to similar standards and regulatory requirements as other regulated entities under its waiver of sovereign immunity.

10. Clarify "Substantial Contribution" and "Ineffective Control"

Comment: The proposed 40 CFR 123.35(b)(4) requires the permitting authority to designate any entity that contributes substantially to the storm water pollutant loadings. This could mean that each facility would be required to do a comprehensive analysis to determine whether it "contributes substantially" to the discharge of a pollutant. The proposed 40 CFR 123.35(b)(1) requires each permitting authority to develop the criteria for determining whether a facility has the potential to exceed water quality standards. The proposed rule requires the permitting authority to identify "ineffective control of water quality concerns by other programs." Under this proposal, it would be necessary to determine whether other regulatory programs have failed to maintain water quality. This could potentially require reexamination of existing RCRA and other permits, consent orders, and other restrictions, causing expense by both the facility and the permitting authority. Further, there does not appear to be a mechanism for resolving any discovered differences. It should not be the responsibility of any federal facility that is in compliance with regulatory requirements to have the burden of demonstrating the efficacy of each regulation to which it is subject.

Recommendation: DoD recommends that the EPA define the term "contribute substantially to storm water pollutant loading." Further, the EPA should specify that the determination of the "ineffective control" is the responsibility of regulators, with concurrence from the regulated community and the public, and specify how each permitting authority will determine who is "contributing substantially".

11. Abandon Revised Regulation Format

Comment: EPA requested comment concerning the new question-and-answer format for proposed regulations. This new format, while useful in helping the regulated community understand the new regulation, does not comport with the existing structure and makes it difficult to understand what is actually being required. The purpose of the preamble to any rule is to explain, in dialogue form, what the regulations mean and why they were needed. To extend this to the wording of the rule itself only adds confusion and reduces the precision of the regulation.

Recommendation: Abandon the new regulation format.

12. Annual Report

Comment: The permit requirement for annual reports is unduly burdensome and will add significant cost in report preparation with no significant benefit.

Recommendation: DoD recommends that the permittee be required to submit a report after the first year and maintain the information required to meet permit conditions. If the permitting authority has a concern about a specific system, installation, or watershed, the regulator can inspect or request a copy of the necessary information.

13. Federal Facilities as Models for Municipal and Private Sector Facilities

Comment: EPA states that " . . . Federally owned and operated facilities could act as models for municipal and private sector facilities and implementor test state-of-the-art management practices and control measures . . . " DoD does, and will continue to strive towards being a role model in environmental stewardship and compliance within the context of DoD's primary mission of military readiness and fiscal constraints.


DRAFT

U.S DEPARTMENT OF DEFENSE
CLEAN WATER ACT SERVICES STEERING COMMITTEE

Comments to Storm Water Phase II Proposed Rule
2 April 98

1. Clarify Definition of Population With Respect to DoD Facilities

Comment: The Storm Water Phase II Proposed Rule does not provide guidance for determining the population of an installation with respect to transient personnel. DoD installations routinely experience significant changes in "population" due to military training activities.

Recommendation: The DoD recommends that EPA define "population", with respect to DoD facilities, as follows: "For purposes of DoD installations, population means the total number of individuals that maintain residential living quarters within the installation boundary."

2. Clarify Population Threshold

Comment: The EPA invited comments regarding a population threshold of 1,000 people for a municipality or an alternate population of 5,000. In EPA's request for comment on this issue, the EPA failed to note whether it was soliciting comment on total population, or population density (persons per square mile). It is the DoD's interpretation is that the EPA is requesting comment on using a population density of 1000 versus 5000 people per square mile. However, Clarification on this issue is necessary.

Recommendation: Based upon this interpretation, DoD believes that 1000 people per square mile or a population of less than 10,000 people is the appropriate threshold. Furthermore, DoD recommends that this threshold be established for exemption from the storm water requirements rather than as a baseline for the granting of a waiver by the NPDES permitting authority. In addition, EPA should specify whether the population threshold is additive for a DoD facility that is not contiguous (e.g., separated by a body of water) and that has separate storm water discharge collection systems.

3. Clarify the meaning of "Public" for Purposes of instituting Minimum Control Requirements

Comment: The EPA is proposing to regulate federal facilities in the same manner as municipalities, and to include federal facilities in the definition of regulated small municipal separate storm sewer systems. The equation of a federal facility to a municipality raises questions concerning the regulatory responsibilities of federal facilities with respect to public education and outreach, and public involvement/participation. The EPA should clarify what is meant by the "public" with respect to DoD installations.

Recommendation: Define "public", with respect to DoD installations, as the resident and employee population within the fence line of the facility. If this language is not incorporated as a defined term in the regulations, then in the alternative, include language to this affect in the preamble to the final rule.

4. Acknowledge that a "Municipality" is Different From a "Federal Facility."

Comment: Under the proposed rule, DoD installations will have to institute the minimum control measures in a manner similar to a municipality. Municipalities typically have self-governance authority to enact ordinances or regulations to implement minimum control requirements and appropriate BMPs. However, it is unclear how these Storm Water Phase II requirements would be implemented by a military installation that has very different governance and funding mechanisms For example, may the DoD installation regulate itself by the use of base operating instructions? And, if a construction is performed by a contractor, may a contract substitute for an ordinance or other regulatory mechanism, even if the government cannot provide for stipulated penalties for instances of non-compliance but is limited, instead, to those remedies that may be invoked under the Federal Acquisition Regulation?

Recommendation: DoD recommends that the answer to both of these questions be affirmative, and that base operating instructions and contracting documents be the primary control mechanisms for implementation of the requirements of this rule. Further, the EPA should state in the preamble to the final rule that Federal facilities are different than municipalities for purposes of instituting minimum control requirements.

5. Recognize Coverage of Multiple Permitted Activities

Comment: Existing storm water regulations neither specifically permit nor prohibit coverage for multiple small-scale construction activities on a single installation over the course of a year by providing one notice of intent that describes all such activities. In the preamble to the proposed rule, however, EPA requests comments on the option of allowing an owner or operator of a construction firm to apply for coverage once for all of the firm's activities in one jurisdiction for the term of the NPDES permit. EPA raises several concerns with regard to structuring notices in this fashion, including, among other things, the identification of responsible parties on-site, site-by-site identification of construction discharges for tracking compliance with permit conditions, and treating large and smaller construction sites as subject to the same requirements.

Recommendation: DoD recommends that the EPA recognize that DoD installations may apply for coverage for multiple small-scale construction activities on a single installation over the course of a year by providing one notice of intent that describes all such activities. Each DoD installation would be the responsible party for all construction covered under such a combined notice-of-intent. Individual supplemental start date notices could be provided as they become available to enable regulators to monitor compliance, and projects presenting unique concerns could be addressed separately or at least be described more fully in the yearly notice. This approach takes into account DoD funding mechanisms, and the cost savings/efficiencies from such an approach are in line with EPA's recognition of its continuing imperative to assure that environmental regulations accomplish statutory objectives in the least burdensome and most cost-effective fashion.

6. Adopt a 180-day Deadline for Designating MS4s

Comment: The EPA requested comment on whether 60 days is adequate time for MS4s designated by the permitting authority on a local basis to prepare a notice of intent (NOI) or permit application, or if a 90-day time period would be more appropriate. The DoD believes that a period of 180 days is appropriate to prepare an individual permit application, because it is consistent with permit filing periods in other regulations. In a related issue, the EPA is requesting comment on whether 60 days is enough time to submit an NOI after the facility has been notified by the permitting authority that it is subject to a general permit once one has been made available.

Recommendation: The DoD believes that a 180-day period to submit an NOI in both circumstances is appropriate because it is consistent with permit filing periods in other environmental regulations.

7. Retain the No-Exposure Exemption in the Final Rule

Comment: The DoD strongly supports the principle of a mechanism to exempt otherwise regulated activities, where a facility certifies that there is "no-exposure of industrial activities to storm water."

Recommendation: The DoD recommends that the EPA incorporate the no-exposure exemption, as proposed, into the final rule.

8. Allow Large and Medium Municipal Separate Storm Sewer Systems Designate Physically Interconnected Small Municipal Separate Storm Sewer Systems

Comment: EPA should allow large and medium MS4s to petition local permitting authorities to designate interconnected MS4/federal facilities under their existing permit if they contribute substantially to storm water pollutant loading.

Recommendation: DoD recommends that in addition to requiring NPDES authorities to designate any owner of a MS4 contributing substantially to the pollutant loading of a physically interconnected system, that the affected large or medium MS4 also be allowed to petition the NPDES authority to designate the interconnected small MS4 based on "contributing substantially to storm water pollutant loading."

9. Notice of Intent (NOI)

Comment: For construction activity at sites of between 1 and 5 acres in areas covered by a general permit, EPA is proposing that no NOI need be submitted. Neither the preamble nor the proposed rule suggests how notification of construction activity would otherwise be made, leaving this to the discretion of the local permitting authority. This practice could result in differing notification requirements, adding burden to federal agencies' compliance activities nationwide. Also, if a BMP must be included in a permit application or an NOI, and the menu of BMPs has not been developed, then how will a facility select control measures?

Recommendation: EPA should specify a system of notification under a general permit when an NOI is not required by the permitting authority.

10. Eliminate Alternative Approaches to Permitting Program

Comment: EPA has received proposals to allow for alternatives to an NPDES Permit program to be used by states and tribes. EPA opposes those alternative proposals due to a lack of national consistency, increased confusion, and the requirement for states and tribes to certify each program as being equivalent to the EPA program. EPA does, however, agree that these alternatives could work, and invites comments.

Recommendation: DoD opposes alternatives to the proposed NPDES program for states and tribes because the DoD requires a nationally consistent program because of training requirements, compliance and regulatory tracking, and maintaining the efficiency of nationwide operations.

11. Frequency of Monitoring

Comment: EPA proposes that monitoring be conducted during the second period of permit issuance (permits are expected to be in effect for 5 years), and that it be spread out over the watershed with only a portion of the dischargers required to monitor.

Recommendation: EPA should develop criteria for sharing the burden of monitoring, since DoD is held to similar standards and regulatory requirements as other regulated entities under its waiver of sovereign immunity.

12. Clarify "Substantial Contribution" and "Ineffective Control"

Comment: The proposed 40 CFR 123.35(b)(4) requires the permitting authority to designate any entity that contributes substantially to the storm water pollutant loadings. This could mean that each facility would be required to do a comprehensive analysis to determine whether it "contributes substantially" to the discharge of a pollutant. The proposed 40 CFR 123.35(b)(1) requires each permitting authority to develop the criteria for determining whether a facility has the potential to exceed water quality standards. The proposed rule requires the permitting authority to identify "ineffective control of water quality concerns by other programs." Under this proposal, it would be necessary to determine whether other regulatory programs have failed to maintain water quality. This could potentially require reexamination of existing RCRA and other permits, consent orders, and other restrictions, causing expense by both the facility and the permitting authority. Further, there does not appear to be a mechanism for resolving any discovered differences. It should not be the responsibility of any federal facility that is in compliance with regulatory requirements to have the burden of demonstrating the efficacy of each regulation to which it is subject.

Recommendation: DoD recommends that the EPA define the term "contribute substantially to storm water pollutant loading." Further, the EPA should specify that the determination of the "ineffective control" is the responsibility of regulators, with concurrence from the regulated community and the public, and specify how each permitting authority will determine who is "contributing substantially".

11. 13. Abandon Revised Regulation Format

Comment: EPA requested comment concerning the new question-and-answer format for proposed regulations. This new format, while useful in helping the regulated community understand the new regulation, does not comport with the existing structure and makes it difficult to understand what is actually being required. The purpose of the preamble to any rule is to explain, in dialogue form, what the regulations mean and why they were needed. To extend this to the wording of the rule itself only adds confusion and reduces the precision of the regulation.

Recommendation: Abandon the new regulation format.

14. Annual Report

Comment: The permit requirement for annual reports is unduly burdensome and will add significant cost in report preparation with no significant benefit.

Recommendation: DoD recommends that the permittee be required to submit a report after the first year and maintain the information required to meet permit conditions. If the permitting authority has a concern about a specific system, installation, or watershed, the regulator can inspect or request a copy of the necessary information.

15. Federal Facilities as Models for Municipal and Private Sector Facilities

Comment: EPA states that "... Federally owned and operated facilities could act as models for municipal and private sector facilities and implement or test state-of-the-art management practices and control measures ..." DoD does, and will continue to strive towards being a role model in environmental stewardship and compliance within the context of DoD's primary mission of military readiness and fiscal constraints.


U.S. DEPARTMENT OF DEFENSE
CLEAN WATER ACT SERVICES STEERING COMMITTEE

Comments to Storm Water Phase II Proposed Rule
3 April 1998

1. Clarify Definition of Population With Respect to DoD Facilities

Comment: The Storm Water Phase II Proposed Rule does not provide guidance for determining the population of an installation with respect to transient personnel. DoD installations routinely experience significant changes in "population" due to military training activities.

Recommendation: The DoD recommends that The EPA define "population", with respect to federal facilities, as follows: "For purposes of DoD installations, population means the total number of individuals that maintain residential living quarters within the installation's boundary."

2. Clarify Population Threshold

Comment: EPA invited comments regarding a population threshold of 1,000 people for a municipality or an alternate population of 5,000. In EPA's request for comment on this issue, EPA failed to note whether it was soliciting comment on total population, or population density (persons per square mile). It is the Department of Defense's (DoD's) interpretation is that EPA is requesting comment on using a population density of 1000 versus 5000 people per square mile. However, Clarification on this issue is necessary.

Recommendation: Based upon this interpretation, DoD believes that 1000 people per square mile or a population of less than 10,000 people is the appropriate threshold. Furthermore, DoD recommends that this threshold be established as an exemption from the storm water requirements rather than as a baseline for the granting of a waiver by the NPDES permitting authority. In addition, EPA should specify whether the population threshold is additive for a DoD facility that is not contiguous (e.g., separated by a body of water) and that has separate storm water discharge collection systems.

3. Clarify the meaning of "Public" for Purposes of instituting Minimum Control Requirements

Comment: The EPA is proposing to regulate federal facilities in the same manner as municipalities, and to include federal facilities in the definition of regulated small municipal separate storm sewer systems. The equation of a federal facility to a municipality raises questions concerning the regulatory responsibilities of federal facilities with respect to public education and outreach, and public involvement/participation. The EPA should clarify what is meant by the "public" with respect to DoD installations.

Recommendation: Define "public", with respect to DoD installations, as the resident and employee population within the fence line of the facility. If this language is not incorporated as a defined term in the regulations, then, in the alternative, include language to this effect in the preamble to the final rule.

4. Acknowledge that a "Municipality" is Different From a "Federal Facility."

Comment: Under the proposed rule, DoD installations will have to institute the minimum control measures in a manner similar to a municipality. Municipalities typically have self-governing authority to enact and enforce ordinances to implement minimum control requirements and appropriate Best Management Practices (BMPs). However, it is unclear how these Storm Water Phase II requirements would be implemented by a military installation that has very different governing and funding mechanisms. For example, may DoD installation regulate itself by the use of base operating instructions? And, if construction is performed by a contractor, will a contract substitute for an ordinance or other regulatory mechanism, even if the government cannot provide for stipulated penalties for instances of non-compliance but is limited, instead, to those remedies that may be invoked under the Federal Acquisition Regulation?

Recommendation: DoD recommends that the answer to both of these questions be affirmative, and that base operating instructions and contracting documents be the primary control mechanisms for implementation of this rule. Furthermore, EPA should clarify in the preamble to the final rule that Federal facilities are different from municipalities for purposes of instituting minimum control requirements.

5. Recognize Coverage of Multiple Permitted Activities

Comment: Existing storm water regulations neither specifically permit nor prohibit coverage for multiple small-scale construction activities on a single installation over the course of a year by providing one notice of intent that describes all such activities. In the preamble to the proposed rule, however, EPA requests comments on the option of allowing an owner or operator of a construction firm to apply for coverage once for all of the firm's activities in one jurisdiction for the term of the NPDES permit. The EPA raises several concerns with regard to structuring notices in this fashion, including, among other things, the identification of responsible parties on-site, site-by-site identification of construction discharges for tracking compliance with permit conditions, and treating large and smaller construction sites as subject to the same requirements.

Recommendation: DoD agrees that federal facilities should be able to submit one Notice of Intent (NOI) for all construction activities. This process would allow DoD to meet its funding request requirements and to reduce the administrative burden required to prepare individual NOIs for each project. EPA should recognize that DoD installations may apply for coverage for multiple small-scale construction activities on a single installation over the course of a year by providing one notice of intent that describes all such activities. Each DoD installation would be the responsible party for all construction covered under such a combined notice-of-intent. Individual supplemental start date notices could be provided as they become available to enable regulators to monitor compliance, and projects presenting unique concerns could be addressed separately or at least be described more fully in the yearly notice. This approach takes into account DoD funding mechanisms, and the cost savings/efficiencies from such an approach are in line with EPA's recognition of its continuing imperative to ensure that environmental regulations accomplish statutory objectives in the least burdensome and most cost-effective fashion.

6. Adopt a 180-day Deadline for Designating Municipal Separate Storm Sewer Systems (MS4s)

Comment: The EPA requested comment on whether 60 days is adequate time for MS4s designated by the permitting authority on a local basis to prepare a NOI or permit application, or if a 90-day time period would be more appropriate. The DoD believes that a period of 180 days is appropriate to prepare an individual permit application, because it is consistent with permit filing periods in other regulations. In a related issue, EPA is requesting comment on whether 60 days is enough time to submit an NOI after the facility has been notified by the permitting authority that it is subject to a general permit once one has been made available.

Recommendation: The DoD believes that a 180-day period to submit an NOI in both circumstances is appropriate because it is consistent with permit filing periods in other environmental regulations.

7. Retain the No-Exposure Exemption in the Final Rule

Comment: The DoD strongly supports the principle of a mechanism to exempt otherwise regulated activities, where a facility certifies that there is "no-exposure of industrial activities to storm water."

Recommendation: The DoD recommends that EPA incorporate the no-exposure exemption, as proposed, into the final rule.

8. Allow Large and Medium Municipal Separate Storm Sewer Systems Designate Physically Interconnected Small Municipal Separate Storm Sewer Systems

Comment: EPA requires NPDES permitting authorities to designate any owner of a MS4 contributing substantially to the pollutant loading of a physically interconnected system.

Recommendation: DoD recommends that EPA allow affected large and medium MS4s to petition the NPDES authority to designate interconnected small MS4s if they contribute "substantially to storm water pollutant loading."

9. Provide Guidance on Submission of a Notice of Intent

Comment: For construction activity at sites of between 1 and 5 acres in areas covered by a general permit, EPA is proposing that no NOI need be submitted. Neither the preamble nor the proposed rule suggests how notification of construction activity would otherwise be made, leaving this to the discretion of the local permitting authority. This practice could result in differing notification requirements, increasing the burden to federal agencies' compliance activities nationwide. Also, if a BMP must be included in a permit application or an NOI, and the menu of BMPs has not been developed, then how will a facility select control measures?

Recommendation: The EPA should specify a system of notification, under a general permit, when an NOI is not required by the permitting authority.

10. Eliminate Alternative Approaches to a Permitting Program

Comment: The EPA has received proposals to allow for alternatives to a NPDES Permit program to be used by states and tribes. The EPA opposes those alternative proposals due to a lack of national consistency, increased confusion, and the requirement for states and tribes to certify each program as being equivalent to EPA program. The EPA does, however, agree that these alternatives could work, and invites comments.

Recommendation: DoD opposes alternatives to the proposed NPDES program for states and tribes because DoD requires a nationally consistent program for purposes of training requirements, compliance and regulatory tracking, and to maintain the efficiency of nationwide operations.

11. Develop Criteria for Sharing the Monitoring Burden

Comment: EPA proposes that monitoring be spread out over the watershed with only a portion of the dischargers required to monitor.

Recommendation: The EPA should develop guidance for sharing the burden of monitoring among regulated entities within the watershed.

12. Eliminate Specificity in Monitoring Sample Types

Comment: The specificity currently in the proposed rule, requiring the collection of flow-weighted composite samples, is unnecessary and unduly restrictive and, depending on the conditions of discharge flows, may not result in added value.

Recommendation: DoD recommends that the regulator be afforded the flexibility to specify the types of samples to be collected based on information gathered in the field.

13. Clarify "Substantial Contribution" and "Ineffective Control"

Comment: Proposed 40 CFR 123.35(b)(4) requires the permitting authority to designate any entity that contributes substantially to storm water pollutant loadings. This could mean that each facility would be required to conduct a comprehensive analysis to determine whether it "contributes substantially" to the discharge of a pollutant. Proposed 40 CFR 123.35(b)(1) requires each permitting authority to develop the criteria for determining whether a facility has the potential to exceed water quality standards. The proposed rule requires the permitting authority to identify "ineffective control of water quality concerns by other programs." Under this proposal, it would be necessary to determine whether other regulatory programs have failed to maintain water quality. This could potentially require reexamination of existing Resource Conservation Recovery Act (RCRA) and other permits, consent orders, and other restrictions, causing expense to both the facility and the permitting authority. Further, there does not appear to be a mechanism for resolving any discovered differences. It should not be the responsibility of any federal facility that is in compliance with regulatory requirements to have the burden of demonstrating the efficacy of each regulation to which it is subject.

Recommendation: EPA should specify that the determination of the "ineffective control" is the responsibility of regulators, in consultation with the regulated community and the public. Furthermore, DoD recommends that EPA define the term "contribute substantially to storm water pollutant loading," and specify how each permitting authority will determine who is "contributing substantially".

14. Abandon Revised Regulation Format

Comment: The EPA requested comment concerning the new question-and-answer format for proposed regulations. This new format, while useful in helping the regulated community understand the new regulation, is not consistent with the existing structure and makes it difficult to understand what is actually being required. The purpose of the preamble to any rule is to explain, in dialogue form, what the regulations mean and why they were needed. To extend this to the wording of the rule itself only adds confusion and reduces the precision of the regulation.

Recommendation: Abandon the new regulation format.

15. Revise Annual Report

Comment: The permit requirement for annual reports is unduly burdensome and will add significant cost in report preparation with no significant benefit.

Recommendation: DoD recommends that the permittee be required to submit a report only after the first year and, thereafter, maintain the information required to meet permit conditions. If the permitting authority has a concern about a specific system, installation, or watershed, the regulator can inspect or request a copy of the necessary information.

16. Provide Guidance on Waivers

Comment: Waivers for construction activities are proposed to be available to municipalities (including federal facilities) of less than 1,000 people that can demonstrate that they are not contributing to water quality problems, and certifying as such to the permitting authority. The preamble and the proposed rule are not specific in how to certify that a facility is not contributing to water quality problems.

Recommendation: Because certification could vary among various permitting authorities, EPA should provide guidance on this issue in the proposed rule, establishing a national standard.

17. Position versus Person Responsibility

Comment: EPA proposed that persons who would implement the program be mentioned in the Notice of Intent.

Recommendation: EPA should require only the position with installation authority and responsibility be required to submit the NOI or permit application.

18. Federal Facilities as Models for Municipal and Private Sector Facilities

Comment: EPA states that "... Federally owned and operated facilities could act as models for municipal and private sector facilities and implement or test state-of-the-art management practices and control measures ..." DoD does, and will continue to, strive towards being a role model in environmental stewardship and compliance within the context of our primary mission, military readiness, and budgetary constraints.