Draft National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Discharges From Construction Activities, 28454-28459 [E8-10997]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 73, Number 96 (Friday, May 16, 2008)]
[Notices]
[Pages 28454-28459]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-10997]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-8567-1, EPA-HQ-OW-2008-0238]


Draft National Pollutant Discharge Elimination System (NPDES) 
General Permit for Stormwater Discharges From Construction Activities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed permit issuance.

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SUMMARY: EPA Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10 today are proposing 
for public comment the issuance of their 2008 National Pollutant 
Discharge Elimination System general permits for stormwater discharges 
from new dischargers engaged in large and small construction 
activities. Hereinafter, these NPDES general permits will be referred 
to as ``permit'' or ``2008 construction general permit'' or ``2008 
CGP.'' ``New dischargers'' are those who did not file a notice of 
intent (``NOI'') to be covered under the 2003 construction general 
permit (``2003 CGP'') before it expired. Existing dischargers who 
properly filed an NOI to be covered under the 2003 CGP continue to be 
authorized to discharge under that permit according to its terms. This 
draft 2008 CGP contains the same limits and conditions as the Agency's 
2003 CGP with the exception of a few minor modifications which are 
detailed below. As proposed, EPA is issuing this CGP for a period not 
to exceed two (2) years and will make the permit available to new 
construction activities and unpermitted ongoing activities only.
    In addition to proposing this draft CGP, EPA is also requesting 
comments on the criteria to be used by the Agency to incorporate, by 
reference, ``qualifying local program requirements'' for erosion and 
sediment control as provided for in EPA's regulations. Approved 
qualifying local program requirements can then be incorporated by 
reference into the Agency's construction general permit. A construction 
site operator with construction activities within the jurisdiction of 
the qualifying local program can follow local erosion and sediment 
control requirements in lieu of complying with comparable erosion and 
sediment control requirements in EPA's CGP.

DATES: Comments on EPA's proposal, including the draft permit, must be 
postmarked by June 16, 2008.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2008-0238, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     E-mail: ow-docket@epa.gov.
     Mail: Water Docket, Environmental Protection Agency, 
Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
     Hand Delivery: EPA Docket Center, Public Reading Room, EPA 
Headquarters West Building, Room 3334, 1301 Constitution Ave., NW., 
Washington, DC 20460. Such deliveries are only accepted during the 
Docket's normal hours of operation, and special arrangements should be 
made for deliveries of boxed information.
    Instructions: A copy of the draft 2008 CGP and its accompanying 
fact sheet is available at www.epa.gov/npdes/stormwater/cgp. Direct 
your comments to Docket ID No. EPA-HQ-OW-2008-0238. EPA's policy is 
that all comments received will be included in the public docket 
without change and may be made available online at www.regulations.gov, 
including any personal information provided, unless the comment 
includes information claimed to be Confidential Business Information 
(CBI) or other information whose disclosure is restricted by statute. 
Do not submit information that you consider to be CBI or otherwise 
protected through www.regulations.gov or e-mail. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an e-mail comment 
directly to EPA without going through www.regulations.gov your e-mail 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the Water Docket, EPA/DC, EPA 
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the Water 
Docket is (202) 566-2426.

[[Page 28455]]


FOR FURTHER INFORMATION CONTACT: Greg Schaner, Water Permits Division, 
Office of Wastewater Management (Mail Code: 4203M), Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW., EPA East, Washington, 
DC 20460; telephone number: (202) 564-0721; fax number: (202) 564-6431; 
e-mail address: schaner.greg@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does This Action Apply to Me?

    The 2008 construction general permit (``2008 CGP'') would 
potentially apply to the following construction activities:

------------------------------------------------------------------------
                                                         North American
                                                            industry
           Category              Examples of affected    classification
                                       entities          system (NAICS)
                                                              code
------------------------------------------------------------------------
Industry......................  Construction site operators disturbing 1
                                  or more acres of land, or less than 1
                                  acre but part of a larger common plan
                                   of development or sale if the larger
                                  common plan will ultimately disturb 1
                                     acre or more, and performing the
                                          following activities:
                                   Building,                         233
                                    Developing and
                                    General
                                    Contracting.
                                   Heavy Construction                234
------------------------------------------------------------------------

    EPA does not intend the preceding table to be exhaustive, but 
provides it as a guide for readers regarding entities likely to be 
regulated by this action. This table lists the types of activities that 
EPA is now aware of that could potentially be affected by this action. 
Other types of entities not listed in the table could also be affected. 
To determine whether your facility is affected by this action, you 
should carefully examine the definition of ``construction activity'' 
and ``small construction activity'' in existing EPA regulations at 40 
CFR 122.26(b)(14)(x) and 122.26(b)(15), respectively. If you have 
questions regarding the applicability of this action to a particular 
entity, consult the person listed for technical information in the 
preceding FOR FURTHER INFORMATION CONTACT section.
    Eligibility for coverage under the 2008 CGP would be limited to 
operators of ``new projects'' or ``unpermitted ongoing projects.'' A 
``new project'' is one that commences after the effective date of the 
2008 CGP. An ``unpermitted ongoing project'' is one that commenced 
prior to the effective date of the 2008 CGP, yet never received 
authorization to discharge under the 2003 CGP or any other NPDES permit 
covering its construction-related stormwater discharges. This proposal 
is limited to those areas where EPA is the permitting authority. A list 
of eligible areas is included in Appendix B of the draft 2008 CGP.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
www.regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date, and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

C. Public Hearings

    EPA has not scheduled any public hearings to receive public comment 
concerning the proposed permit. All persons will continue to have the 
right to provide written comments during the public comment period. 
However, interested persons may request a public hearing pursuant to 40 
CFR 124.12 concerning the proposed permit. Requests for a public 
hearing must be sent or delivered in writing to the same address as 
provided above for public comments prior to the close of the comment 
period. Requests for a public hearing must state the nature of the 
issues proposed to be raised in the hearing. Pursuant to 40 CFR 124.12, 
EPA shall hold a public hearing if it finds, on the basis of requests, 
a significant degree of public interest in a public hearing on the 
proposed permit. If EPA decides to hold a public hearing, a public 
notice of the date, time and place of the hearing will be made at least 
30 days prior to the hearing. Any person may provide written or oral 
statements and data pertaining to the proposed permit at the public 
hearing.

D. Finalizing the Permit

    After the close of the public comment period, EPA will issue a 
final permit. This permit will not be issued until after all public 
comments have been considered and appropriate changes made to the 
permit. EPA's response to public comments received will be included in 
the docket as part of the final permit decisions. Once the final permit 
becomes effective, operators of new and unpermitted ongoing 
construction projects may seek authorization to discharge by filing a 
NOI to be covered under the new 2008 CGP. Under EPA's regulations at 40 
CFR 122.6, any construction site operator obtaining permit coverage 
prior to the July 1, 2008 expiration date of the 2003 CGP, 
automatically remains covered under that permit until the earliest of:
     The operator submits a Notice of Termination, or;
     EPA issues an individual permit or denies coverage under 
an individual permit for the site's stormwater discharges, or;
     EPA issues a new general permit that establishes 
procedures for covering

[[Page 28456]]

these existing dischargers to obtain coverage under the new general 
permit and the operator obtains coverage consistent with the procedures 
detailed in that new general permit.

E. Who Are the EPA Regional Contacts for This Proposed Permit?

    For EPA Region 1, contact Thelma Murphy at tel.: (617) 918-1615 or 
e-mail at murphy.thelma@epa.gov.
    For EPA Region 2, contact Stephen Venezia at tel.: (212) 637-3856 
or e-mail at venezia.stephen@epa.gov, or for Puerto Rico, contact 
Sergio Bosques at tel.: (787) 977-5838 or e-mail at 
bosques.sergio@epa.gov.
    For EPA Region 3, contact Garrison Miller at tel.: (215) 814-5745 
or e-mail at miller.garrison@epa.gov.
    For EPA Region 5, contact Brian Bell at tel.: (312) 886-0981 or e-
mail at bell.brianc@epa.gov.
    For EPA Region 6, contact Brent Larsen at tel.: (214) 665-7523 or 
e-mail at: larsen.brent@epa.gov.
    For EPA Region 7, contact Mark Matthews at tel.: (913) 551-7635 or 
e-mail at: matthews.mark@epa.gov.
    For EPA Region 8, contact Greg Davis at tel.: (303) 312-6314 or e-
mail at: davis.gregory@epa.gov.
    For EPA Region 9, contact Eugene Bromley at tel.: (415) 972-3510 or 
e-mail at bromley.eugene@epa.gov.
    For EPA Region 10, contact Misha Vakoc at tel.: (206) 553-6650 or 
e-mail at vakoc.misha@epa.gov.

II. Background of Permit Proposal

A. Statutory and Regulatory History

    The Clean Water Act (``CWA'') establishes a comprehensive program 
``to restore and maintain the chemical, physical, and biological 
integrity of the Nation's waters.'' 33 U.S.C. 1251(a). The CWA also 
includes the objective of attaining ``water quality which provides for 
the protection and propagation of fish, shellfish and wildlife.'' 33 
U.S.C. 1251(a)(2). To achieve these goals, the CWA requires EPA to 
control the discharges through the issuance of National Pollutant 
Discharge Elimination System (``NPDES'') permits.
    Section 405 of the Water Quality Act of 1987 (WQA) added section 
402(p) of the Clean Water Act (CWA), which directed EPA to develop a 
phased approach to regulate stormwater discharges under the NPDES 
program. EPA published a final regulation in the Federal Register on 
the first phase of this program on November 16, 1990, establishing 
permit application requirements for ``storm water discharges associated 
with industrial activity.'' See 55 FR 47990. EPA defined the term 
``storm water discharge associated with industrial activity'' in a 
comprehensive manner to cover a wide variety of facilities. 
Construction activities, including activities that are part of a larger 
common plan of development or sale, that ultimately disturb at least 
five acres of land and have point source discharges to waters of the 
U.S. were included in the definition of ``industrial activity'' 
pursuant to 40 CFR 122.26(b)(14)(x). Phase II of the stormwater program 
was published in the Federal Register on December 8, 1999, and required 
NPDES permits for discharges from construction sites disturbing at 
least one acre, but less than five acres, including sites that are part 
of a larger common plan of development or sale that will ultimately 
disturb at least one acre but less than five acres, pursuant to 40 CFR 
122.26(b)(15)(i). See 64 FR 68722.
    NPDES permits issued for construction stormwater discharges are 
required under Section 402(a)(1) of the CWA to include conditions for 
meeting technology-based effluent limits established under Section 301 
and, where applicable, Section 306. Once an effluent limitations 
guideline or new source performance standard is promulgated in 
accordance with these sections, NPDES permits are required to 
incorporate limits based on such limitations and standards. See 40 CFR 
122.44(a)(1). Prior to the promulgation of national effluent 
limitations and standards, permitting authorities incorporate 
technology-based effluent limitations on a best professional judgment 
basis. CWA section 402(a)(1)(B); 40 CFR 125.3(a)(2)(ii)(B).
    The NPDES regulations, at 40 CFR 122.44(s), authorize EPA to 
recognize local erosion and sediment control requirements that meet or 
exceed the requirements in that section as a ``qualifying local 
program'' (``QLP''). EPA can incorporate any such QLP requirements 
meeting or exceeding regulatory criteria into the CGP consistent with 
procedures for permit modifications established at 40 CFR 124.5. 
Following final incorporation of any QLP into the CGP, construction 
site operators that are subject to the requirements of the CGP and who 
are operating within the jurisdiction of a QLP, would then be directed 
(in the CGP) to follow those qualified local erosion and sediment 
control requirements in lieu of otherwise applicable erosion and 
sediment control requirements detailed in the CGP. Other CGP 
requirements, such as meeting eligibility criteria and standard NPDES 
permit conditions would still apply to that construction site operator. 
EPA has not incorporated QLPs into any of its previously issued 
construction general permits. However, in the interest of implementing 
this regulation, consistent with the Office of Water's May 8, 2006 
memorandum entitled ``Qualifying Local Programs for Construction Site 
Stormwater Runoff'' (available at www.epa.gov/npdes/stormwater), EPA is 
today proposing draft criteria for incorporating QLPs into this or any 
future CGPs.

B. Summary of Permit Proposal

    EPA proposes to issue the 2008 CGP for a period of not to exceed 
two years. As proposed, the 2008 CGP will include conditions and limits 
that would be identical to the 2003 CGP, with the exception that the 
2008 CGP only applies to new and unpermitted ongoing construction 
projects. Discharges from ongoing projects (or ``existing 
dischargers'') would continue to be covered under the existing 2003 
CGP. (However, EPA clarifies that if an operator of a permitted ongoing 
project transfers ownership of the project, or a portion thereof, to a 
different operator, that subsequent operator will be required to submit 
a complete and accurate NOI for a new project under the 2008 CGP.) 
Although the existing permit expires on July 1, 2008, dischargers who 
filed notices of intent (NOIs) to be authorized under that permit prior 
to the expiration date will continue to be authorized to discharge in 
accordance with EPA's regulations at 40 CFR 122.6. The draft permit 
proposed here will only apply to dischargers who were not authorized 
under the 2003 CGP, which includes both ``new projects'' and 
``unpermitted ongoing projects.'' Operators of new projects or 
unpermitted ongoing projects seeking coverage under the 2008 CGP would 
be expected to use the same electronic Notice of Intent (eNOI) system 
that is currently in place for the 2003 CGP.
    As stated, EPA proposes to issue the 2008 CGP for a period not to 
exceed two years. As a result of recent litigation brought against EPA 
concerning the promulgation of effluent limitations guidelines and 
standards for the construction and development (``C&D'') industry, EPA 
is required by court order to propose effluent limitations guidelines 
and new source performance standards (hereinafter, ``effluent 
guidelines'') for the C&D industry by December 2008, and promulgate 
those effluent guidelines by December 2009. See Natural Resources 
Defense Council, et al. v. U.S. Environmental Protection Agency, No 
CV--0408307-GH (C.D. Cal.)(Permanent Injunction and

[[Page 28457]]

Judgment, December 5, 2006). EPA projects that the Agency may publish a 
proposed rule ahead of the court-ordered deadlines. If EPA publishes 
the proposed rule ahead of schedule, this may allow the Agency to 
promulgate a final rule ahead of schedule as well. The Agency currently 
hopes to promulgate a final rule as early as the end of this calendar 
year. However, completion of the tasks necessary to do so is dependent 
on the timing of numerous future activities and factors associated with 
the effluent guidelines rulemaking process.
    EPA believes it is appropriate to propose a revised CGP once EPA 
has issued C&D effluent guidelines, and therefore proposes a maximum 
two-year duration for this permit to coincide with the court-ordered 
deadlines for the C&D rule. EPA intends to propose and finalize a new, 
revised CGP sooner, if the C&D rule is promulgated earlier than the 
date directed by the court. EPA solicits comments on the proposed 2-
year duration of this permit.

C. What Is EPA's Rationale for This Permit Proposal?

    Since the 2003 CGP expires on July 1, 2008, it is incumbent upon 
EPA to make available a similar general permit that provides coverage 
for the estimated 4,000 new dischargers per year commencing 
construction in the areas where EPA is the permitting authority. 
Without such a permit vehicle, the only other available option for 
construction site operators is to obtain coverage under an individual 
permit. As has been described in the past, issuance of individual 
permits for every construction activity disturbing one acre or more is 
infeasible given the resources required for the Agency to issue 
individual permits. EPA is proposing to issue a CGP that adopts the 
same limits and conditions of the previous permit (the 2003 CGP) for a 
limited period of time. This action is appropriate for several reasons. 
First, as discussed above, EPA is working on the development of a new 
effluent guideline that will address stormwater discharges from the 
same industrial activities (i.e., construction activities disturbing 
one or more acres) as the CGP. Because the development of the C&D rule 
and the issuance of the CGP are on relatively similar schedules, and 
the C&D rule will establish national technology-based effluent 
limitations and standards for construction activities, EPA believes 
that it is more appropriate to proceed along two tracks to permit 
construction discharges. The first track entails issuing a CGP for a 
limited period of time, not to exceed 2 years, that contains the 2003 
CGP limits and conditions, but for only operators of new and 
unpermitted ongoing projects, so that such entities can obtain valid 
permit coverage for their discharges. The second track involves 
proposing and issuing a revised 5-year CGP that incorporates the 
requirements of the new C&D rule shortly after the rule is promulgated.
    Second, EPA believes that issuing a substantially revised CGP by 
July 1, 2008, would be impracticable given the number of unknowns 
concerning the outcome of the C&D rule. EPA does not believe that it 
would be appropriate to issue a permit containing technology-based 
limitations that would be outdated so quickly, given the fact that the 
C&D rule may be promulgated only a few months after permit issuance. 
For similar reasons, if EPA had attempted to approximate the 
requirements of the new C&D rule and incorporate such limits into a new 
CGP, such a permit would presuppose the outcome of the C&D rule and 
potentially conflict with the scope and content of the effluent 
limitation guideline prior to full consideration of public comments. 
Instead, the Agency believes it is a much better use of Agency 
resources to wait the short time until after the C&D rule promulgation 
to issue a revised CGP that is fully reflective of the new effluent 
limitation guideline. In the meantime, during this relatively short 
period of time prior to the C&D rule's promulgation and prior to the 
issuance of the revised CGP that incorporates those standards, EPA is 
proposing to use the permit limits and conditions in the 2003 CGP as an 
effective vehicle to control new discharges. EPA notes that it has 
minimized the amount of time during which the 2008 CGP will remain 
effective in order to underscore the Agency's intention to issue a 
revised CGP once the C&D rule is finalized.
    Third, EPA found the alternative of allowing the 2003 CGP to expire 
without a replacement, relying instead on an enforcement discretion 
approach prior to the issuance of the next permit (similar to the 
practice used for the NPDES Multi-Sector General Permit (MSGP) for 
stormwater discharges from industrial activities), to be an 
unacceptable option for stormwater discharges from construction 
activities. The CGP potentially has an estimated 4,000 new dischargers 
per year that seek coverage. EPA has made progress with the regulated 
community in terms of compliance assistance that would be compromised 
if a permit is not in place during the interim period prior to the 
promulgation of the C&D rule. For instance, EPA Regional offices have 
led substantial efforts to boost compliance with the CGP, resulting in 
an increased rate of compliance among construction operators. If no 
permit is made available by July 1, 2008, EPA anticipates that such 
efforts will be undermined, and the compliance rate may decline. 
Additionally, the enforcement discretion approach would leave 
construction operators without a reasonable way to obtain authorization 
to discharge and would expose them to liability from third party 
lawsuits for violating the Clean Water Act for unpermitted discharges. 
A short-term permit that mirrors the existing 2003 CGP addresses these 
concerns by providing a Federal permit with provisions that have 
already been reviewed in the previous permit issuance process, and by 
avoiding any period of time during which dischargers are not able to 
obtain permit coverage.

D. Significant Changes From 2003 CGP

    As discussed above, EPA is proposing to issue the 2008 CGP for a 
period not to exceed two years. This permit would include the same 
limits and conditions as the 2003 CGP with the following noteworthy 
differences:
    1. Clarification that eligibility for coverage under the 2008 CGP 
is limited to operators of new and unpermitted ongoing construction 
projects.
    2. Clarification that operators of ongoing permitted construction 
projects are not eligible for coverage under the 2008 CGP.
    3. Removal of eligibility for operators in Tribal Lands in Maine 
from the list of areas in Appendix B where this permit is effective.

E. Geographic Coverage

    EPA is only authorized to provide permit coverage for classes of 
discharges that are outside the scope of a State's NPDES program 
authorization. EPA Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10 are proposing 
to issue the 2008 CGP to replace the expiring 2003 CGP for operators of 
new and unpermitted ongoing construction projects. The geographic 
coverage and scope of the 2008 CGP are listed in Appendix B of the 
draft permit. The only change from the scope of coverage in the 2003 
CGP is that the State of Maine is now the permitting authority for all 
discharges in the State, including operators in Tribal Lands, and as 
such, discharges in the State of Maine are no longer eligible for 
coverage under EPA's CGP.

III. Proposed QLP Approval Criteria

    EPA is requesting public comment on a set of criteria for use in 
approving QLPs. EPA developed the criteria based

[[Page 28458]]

on the QLP regulatory elements identified in 40 CFR 122.44(s). These 
regulatory elements include the following:
    (i) Requirements for construction site operators to implement 
appropriate erosion and sediment control best management practices;
    (ii) Requirements for construction site operators to control waste 
such as discarded building materials, concrete truck washout, 
chemicals, litter, and sanitary waste at the construction site that may 
cause adverse impacts to water quality;
    (iii) Requirements for construction site operators to develop and 
implement a stormwater pollution prevention plan. (A stormwater 
pollution prevention plan includes site descriptions, descriptions of 
appropriate control measures, copies of approved State, Tribal or local 
requirements, maintenance procedures, inspection procedures, and 
identification of non-stormwater discharges);
    (iv) Requirements to submit a site plan for review that 
incorporates consideration of potential water quality impacts; and
    (v) For large construction activities only, any additional 
requirements necessary to achieve the applicable technology-based 
standards of ``best available technology'' and ``best conventional 
technology'' based on the best professional judgment of the permit 
writer.
    Using these regulatory elements, EPA has developed a draft set of 
criteria to review local erosion and sediment control requirements in 
an objective and systematic manner. EPA is proposing to use the 
following list of criteria to determine whether local programs meet the 
basic elements in 122.44(s). EPA notes that these criteria are 
presented in a summary format. During the actual evaluation of 
candidate local programs, EPA will need to assess in greater detail 
whether the local requirements meet or exceed the requirements in the 
applicable section of the CGP that is in effect at the time of the 
evaluation.
    I. Erosion and Sediment Control
    a. Sediment controls (e.g., perimeter controls, protection of storm 
drain inlets, location of stockpiles away from storm drainage 
conveyance), collection of sediment on paved areas to prevent it from 
entering storm drains.
    b. Off-site, vehicle tracking of sediments (e.g., establish site 
entrances and exits).
    c. Sediment pond, or similar level of control, for sites greater 
than 10 acres.
    d. Erosion controls (e.g., minimize disturbed areas, phase 
construction activity, blankets, mulches, divert stormwater flowing 
onto and through property away from disturbed areas).
    e. Temporary stabilization (e.g., stabilize areas of exposed soil 
where construction activity has temporarily ceased).
    f. Final stabilization.
    II. Control of Other Wastes--To prevent contamination of 
construction stormwater, the following wastes must be controlled:
    g. Solid waste management (e.g., trash cans, dumpsters, material 
handling. and storage areas).
    h. Concrete truck washout (e.g., designate concrete controlled 
washout areas).
    i. Sanitary waste (e.g., portable toilets).
    j. Spill prevention and response procedures (e.g., for petroleum 
products, chemicals, etc.).
    III. Develop a Stormwater Pollution Prevention Plan
    k. Project description (e.g., nature of construction, dates and 
sequence of construction, site operator information, identification of 
potential pollutant sources).
    l. Site map(s).
    m. Description of all erosion, sediment, other waste controls.
    n. Operation and maintenance procedures for erosion and sediment 
controls.
    o. Routine self-inspections.
    p. Train employees and subcontractors on the implementation of 
controls.
    IV. Submit Site Plan for Review
    q. Submit site plan or entire SWPPP to the qualified local program 
for review.
    EPA anticipates that although a program may not meet all of the 
criteria listed above, it still may be approved as a QLP for those 
parts of the program that do meet the criteria. In such a situation, 
the CGP would specify which requirements would be included in the QLP 
requirements and which ones would be subject to the CGP requirements.
    EPA invites comments on the draft criteria for approving QLPs. EPA 
specifically encourages commenters to suggest modifications to the 
wording of the criteria, where necessary, and/or to recommend other 
criteria that EPA should use. In addition, EPA invites the public to 
suggest candidate local programs that could be considered as a QLP. EPA 
also asks for recommendations on how the process for identifying, 
approving, and implementing QLPs can work effectively.

IV. Compliance With the Regulatory Flexibility Act

A. EPA's Approach to Compliance With the Regulatory Flexibility Act for 
General Permits

    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.
    The legal question of whether a general permit (as opposed to an 
individual permit) qualifies as a ``rule'' or as an ``adjudication'' 
under the Administrative Procedure Act (APA) has been the subject of 
periodic litigation. In a recent case, the court held that the CWA 
Section 404 Nationwide general permit before the court did qualify as a 
``rule'' and therefore that the issuance of that general permit needed 
to comply with the applicable legal requirements for the issuance of a 
``rule.'' National Ass'n of Home Builders v. U.S. Army Corps of 
Engineers, 417 F.3d 1272, 1284-85 (DC Cir. 2005) (Army Corps general 
permits under Section 404 of the Clean Water Act are rules under the 
APA and the Regulatory Flexibility Act; ``Each NWP [nationwide permit] 
easily fits within the APA's definition ``rule.* * * As such, each NWP 
constitutes a rule * * *'').
    As EPA stated in 1998, ``the Agency recognizes that the question of 
the applicability of the APA, and thus the RFA, to the issuance of a 
general permit is a difficult one, given the fact that a large number 
of dischargers may choose to use the general permit.'' 63 FR 36489, 
36497 (July 6, 1998). At that time, EPA ``reviewed its previous NPDES 
general permitting actions and related statements in the Federal 
Register or elsewhere,'' and stated that ``[t]his review suggests that 
the Agency has generally treated NPDES general permits effectively as 
rules, though at times it has given contrary indications as to whether 
these actions are rules or permits.'' Id. at 36496. Based on EPA's 
further legal analysis of the issue, the Agency ``concluded, as set 
forth in the proposal, that NPDES general permits are permits [i.e., 
adjudications] under the APA and thus not subject to APA rulemaking 
requirements or the RFA.'' Id. Accordingly, the Agency stated that 
``the APA's rulemaking requirements are

[[Page 28459]]

inapplicable to issuance of such permits,'' and thus ``NPDES permitting 
is not subject to the requirement to publish a general notice of 
proposed rulemaking under the APA or any other law * * * [and] it is 
not subject to the RFA.'' Id. at 36497.
    However, the Agency went on to explain that, even though EPA had 
concluded that it was not legally required to do so, the Agency would 
voluntarily perform the RFA's small-entity impact analysis. Id. EPA 
explained the strong public interest in the Agency following the RFA's 
requirements on a voluntary basis: ``[The notice and comment] process 
also provides an opportunity for EPA to consider the potential impact 
of general permit terms on small entities and how to craft the permit 
to avoid any undue burden on small entities.'' Id. Accordingly, with 
respect to the NPDES permit that EPA was addressing in that Federal 
Register notice, EPA stated that ``the Agency has considered and 
addressed the potential impact of the general permit on small entities 
in a manner that would meet the requirements of the RFA if it 
applied.'' Id.
    Subsequent to EPA's conclusion in 1998 that general permits are 
adjudications rather than rules, as noted above, the DC Circuit 
recently held that Nationwide general permits under section 404 are 
``rules'' rather than ``adjudications.'' Thus, this legal question 
remains ``a difficult one'' (supra). However, EPA continues to believe 
that there is a strong public policy interest in EPA applying the RFA's 
framework and requirements to the Agency's evaluation and consideration 
of the nature and extent of any economic impacts that a CWA general 
permit could have on small entities (e.g., small businesses). In this 
regard, EPA believes that the Agency's evaluation of the potential 
economic impact that a general permit would have on small entities, 
consistent with the RFA framework discussed below, is relevant to, and 
an essential component of, the Agency's assessment of whether a CWA 
general permit would place requirements on dischargers that are 
appropriate and reasonable. Furthermore, EPA believes that the RFA's 
framework and requirements provide the Agency with the best approach 
for the Agency's evaluation of the economic impact of general permits 
on small entities. While using the RFA framework to inform its 
assessment of whether permit requirements are appropriate and 
reasonable, EPA will also continue to ensure that all permits satisfy 
the requirements of the Clean Water Act. Accordingly, EPA has committed 
to operating in accordance with the RFA's framework and requirements 
during the Agency's issuance of CWA general permits (in other words, 
the Agency has committed that it will apply the RFA in its issuance of 
general permits as if those permits do qualify as ``rules'' that are 
subject to the RFA).

B. Application of RFA Framework to Proposed Issuance of CGP

    EPA has concluded, consistent with the discussion in Section IV.A 
above, that the proposed issuance of the 2008 CGP could affect a 
substantial number of small entities. In the areas where the CGP is 
effective (see Section II.E), (those areas where EPA is the permit 
authority), an estimated 4,000 construction projects per year were 
authorized under the 2003 CGP, a substantial number of which could be 
operated by small entities. However, EPA has concluded that the 
proposed issuance of the 2008 CGP is unlikely to have an adverse 
economic impact on small entities. The draft 2008 CGP includes the same 
requirements as those of the 2003 CGP. Additionally, an operator's use 
of the CGP is volitional (i.e., a discharger could apply for an 
individual permit rather than for coverage under this general permit) 
and is less burdensome than an individual NPDES permit. EPA intends to 
include an updated economic screening analysis with the issuance of the 
next CGP.

    Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

    Dated: May 7, 2008.
Ira Leighton,
Acting Regional Administrator, EPA Region 1.

    Dated: May 8, 2008.
Walter Mugden,
Director, Division of Environmental Planning & Protection, EPA Region 
2.

    Dated: May 6, 2008.
Carl-Axel P. Soderberg,
Division Director, Caribbean Environmental Protection Division, EPA 
Region 2.

    Dated: May 7, 2008.
Jon M. Capacasa,
Director, Water Protection Division, EPA Region 3.

    Dated: May 7, 2008.
Tinka Hyde,
Acting Director, Water Division, EPA Region 5.

    Dated: May 8, 2008.
William H. Honker,
Acting Director, Water Quality Protection Division, EPA Region 6.

    Dated: May 8, 2008.
William A. Spratlin,
Director, Water, Wetlands and Pesticides Division, EPA Region 7.

    Dated: May 8, 2008.
Debra H. Thomas,
Deputy Assistant Regional Administrator, Office of Partnerships & 
Regulatory Assistance, EPA Region 8.

    Dated: May 6, 2008.
Alexis Strauss,
Director, Water Division, EPA Region 9.

    Dated: May 7, 2008.
Michael Gearheard,
 Director, Office of Water and Watersheds, EPA Region 10.
 [FR Doc. E8-10997 Filed 5-15-08; 8:45 am]
BILLING CODE 6560-50-P