Final Modified NPDES Permits for Log Transfer Facilities Operating in Alaska Prior to October 22, 1985, and Possessing a Section 404 Permit But Not a Section 402 permit (AK-G70-0000), and All Other Log Transfer Facilities Operating in Alaska (AK-G70-1000)

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of Final Modified NPDES General Permits.

SUMMARY:

The Director of the Office of Water, EPA Region 10, is publishing notice of the availability of two modified National Pollutant Discharge Elimination System (NPDES) general permits (numbers AK-G70-0000 and AK-G70-1000) for coverage of log transfer facilities (LTFs) operating in Alaska, pursuant to the provisions of the Clean Water Act, 33 U.S.C. 1251 et seq. General permit AK-G70-0000 (“pre-1985 permit”) includes section 402 modifications to section 404 permits issued to LTFs prior to October 22, 1985, in accordance with section 407 of the Water Quality Act of 1987 (Public Law 100-4). All other LTFs can apply to be authorized to discharge under general permit number AK-G70-1000 (“post-1985 permit”).

Because general permit AK-G70-0000 contains modifications of the existing permits originally issued under section 404 of the Clean Water Act for LTFs operating prior to October 22, 1985, the modified permit conditions apply to discharges of bark and wood debris from those LTFs upon the effective date of the permit. Under modified AK-G70-0000, to be authorized to discharge bark or wood debris in a project area zone of deposit, a pre-1985 LTF must: Submit a Notification form to EPA and the Alaska Department of Environmental Conservation (ADEC); and, receive a final decision document and authorization of a project area zone of deposit from ADEC. General permit AK-G70-1000 authorizes discharges to marine waters of Alaska (extending from the Alexander Archipelago west through central Gulf of Alaska and Prince William Sound to Kodiak Island) from LTFs, not possessing pre-1985, section 404 permits, or from LTFs which have received a previous individual permit. In order to be authorized to discharge bark or wood debris under AK-G70-1000, a LTF must: Submit a Notice Of Intent application for permit coverage to EPA and the Alaska Department of Environmental Conservation (ADEC); receive a final decision document and authorization of a project area zone of deposit from ADEC; and, receive written authorization to discharge from EPA. For LTFs that received written authorization to discharge under AK-G70-1000 prior to these modifications, the modified permit conditions will apply to discharges of bark and wood debris from those LTFs upon the effective date of the permit.

Except for those LTFs operating in areas excluded from general permit coverage under the post-1985 permit, the modified general permits authorize the discharge of bark and wood debris, under the specified terms of the general permits, into both near-shore and offshore marine waters in Alaska. Two modifications were made to both of the general permits. One of the modifications provides that ADEC must issue a final decision document authorizing a project area zone of deposit (ZOD) to each LTF prior to that LTF discharging bark and wood debris under the permits. The second modification requires that when conducting the annual bark monitoring, if continuous coverage of bark and wood debris is found at minus 60 feet, the bark monitoring survey must continue deeper until the continuous coverage ends, or at minus 100 feet in depth, whichever occurs first.

DATES:

The modified general NPDES permits shall become effective on April 27, 2004. The post-1985 general permit and the authorization to discharge shall expire at midnight on March 21, 2005.

ADDRESSES:

The complete administrative record for the modified general NPDES permits are available for public review by contacting EPA Region 10, 1200 Sixth Avenue, Seattle, Washington 98101, Telephone: (206) 553-0523 or (206) 553-1643, or via EMAIL to the following address: washington.audrey@epa.gov. For those with impaired hearing or speech, please contact EPA's telecommunication device for the deaf (TDD) at 206/553-1698. Copies of the modified general NPDES permits, supporting statement of basis for the draft general NPDES permits, response to public comments, and today's publication are available from the EPA Alaska Operations Office at 222 West 7th Avenue, #19, Anchorage, Alaska 99513-7588, 907/271-6561 or the Alaska Department of Environmental Conservation at 410 Willoughby Avenue, Suite 105, Juneau, Alaska 99801. These documents can also be found by visiting the Region 10 Web site at http://www.epa.gov/r10earth/water/htm.

FOR FURTHER INFORMATION CONTACT:

Audrey Washington at (206) 553-0523.

SUPPLEMENTARY INFORMATION:

Public Comment

Pursuant to section 402 of the Clean Water Act, 33 U.S.C. 1342, EPA originally proposed and solicited comments on the draft general permits in the Federal Register at 65 FR 11999 (March 7, 2000). In response to petitions to review the permits brought by the Natural Resources Defense Council and nine other petitioners, the United States Court of Appeals for the Ninth Circuit, on February 13, 2002, ruled that the EPA did not provide adequate notice of and opportunity to comment on the general NPDES permits, and remanded the permits to EPA to take further comment on the project area ZOD. On October 22, 2002, EPA proposed modifications to, and requested additional public comments on, general NPDES permits AK-G70-0000 and AK-G70-1000 (67 FR 64885). The public comment period was twice extended (67 FR 68869 and 68 FR 2540), and closed on January 27, 2003. Notice for public comment was also published in the Anchorage Daily News, Ketchikan Daily News, The Seward Phoenix Log, The Valdez Vanguard, and The Cordova Times. Additionally, copies of the draft modifications to the permits were sent to all known log transfer facilities operating under a section 404 permit issued prior to October 22, 1985.

Public comment was solicited on five proposed modifications to the general permits related to: (1) The timing of final zone of deposit authorization by the State of Alaska; (2) exclusion of permit coverage in impaired waterbodies; (3) a limit on continuous bark or wood debris coverage of one acre and 10 centimeters at any point within a project area ZOD; (4) a lower threshold amount for continuous coverage to invoke amendments to a facility's Pollution Prevention Plan; and, (5) increasing the depth of bark surveys of continuous coverage on the ocean bottom to—100 feet.

In response to numerous comments received from facility representatives, tribal representatives, concerned citizens, environmental groups, the U.S. Forest Service, U.S. Fish and Wildlife Service, the National Marine Fisheries Service, local municipalities, and the State of Alaska, the Director has decided to make two out of the five proposed modifications; e.g., numbers 1 and 5 above. All comments, along with EPA's responses, are summarized in the Response to Comments document, which may be obtained at the above addresses, or viewed on the Region 10 Web site listed above.

Legal Requirements

Coastal Zone Management Act

The State of Alaska, Office of Management and Budget, Division of Governmental Coordination, found the original general permits to be consistent with the approved Alaska Coastal Zone Management Program. The successor agency for the coastal zone consistency review, the Alaska Department of Natural Resources, Office of Project Management and Permitting, concurred that the modified general permits were not “major amendments” and did not require a new consistency determination.

Endangered Species Act and Essential Fish Habitat

Consultation under the Endangered Species Act was conducted with the U.S. Fish and Wildlife Service and National Marine Fisheries Service. The EPA determined that the actions are not likely to adversely affect any threatened or listed species. EPA has also made a determination that the actions have no adverse effects on Essential Fish Habitat.

State Water Quality Standards and State Certification

The State of Alaska, Department of Environmental Conservation certified under section 401 of the Clean Water Act, that the subject discharges under both of the original general permits comply with the Alaska State Water Quality Standards and sections 208(e), 301, 302, 303, 306 and 307 of the Clean Water Act. The Department determined that the general permit modifications were of a minor nature and that a new certification was not necessary.

Executive Order 12866

EPA has determined that this general permit is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.

Paperwork Reduction Act

The information collection requirements of this permit were previously approved by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and assigned OMB control numbers 2040-0086 (NPDES permit application) and 2040-0004 (discharge monitoring reports).

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., requires that EPA prepare a regulatory flexibility analysis for rules subject to the requirements of 5 U.S.C. 553(b) that have a significant impact on a substantial number of small entities. The permit issued today, however, is not a “rule” subject to the requirements of 5 U.S.C. 553(b) and is therefore not subject to the RFA.

Unfunded Mandates Reform Act

Section 201 of the Unfunded Mandates Reform Act (UMRA), Public Law 104-4, generally requires Federal agencies to assess the effects of their “regulatory actions” (defined to be the same as “rules” subject to the RFA) on tribal, state, and local governments and the private sector. The permit issued today, however, is not a “rule” subject to the RFA and is therefore not subject to the requirements of UMRA.

Appeal of Permit

Any interested person may appeal the modifications of the Log Transfer Facility General NPDES permits in the Federal Court of Appeals in accordance with section 509(b)(1) of the Clean Water Act. This appeal must be filed within 120 days of the permit effective date. The permit effective date is defined at 40 CFR 23.2 to be at 1 p.m. eastern time, two weeks after the date of publication in the Federal Register. Persons affected by a general NPDES permit may not challenge the conditions of the permit as a right of further EPA proceedings. Instead, they may either challenge the permit in court or apply for an individual NPDES permit and then request a formal hearing on the issuance or denial of an individual NPDES permit.