Modification to 2008 National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Discharges From Construction Activities, 53494-53498 [E9-25123]
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53494
Federal Register / Vol. 74, No. 200 / Monday, October 19, 2009 / Notices
Dated: October 8, 2009.
Lisa Schlosser,
Director, Office of Information Collection.
[FR Doc. E9–25124 Filed 10–16–09; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[FRL–8970–1, EPA–HQ–OW–2008–0238]
Modification to 2008 National Pollutant
Discharge Elimination System
(NPDES) General Permit for
Stormwater Discharges From
Construction Activities
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Notice.
SUMMARY: EPA Regions 1, 2, 3, 5, 6, 7,
8, 9, and 10 today are proposing for
public comment a modification to the
2008 National Pollutant Discharge
Elimination System (NPDES) general
permits for stormwater discharges
associated with construction activity in
order to extend by one-year the
expiration date of the permit.
Hereinafter, these NPDES general
permits will be referred to as ‘‘permit’’
or ‘‘2008 construction general permit’’
or ‘‘2008 CGP.’’ The 2008 CGP was
originally issued for a period not to
exceed two (2) years. Today, EPA
proposes to modify the CGP in order to
extend the 2 year term of the 2008 CGP
by one year so that it expires on June 30,
2011, instead of June 30, 2010. If EPA
finalizes this action, the 2008 CGP will
be in effect for a period of three (3)
years. By Federal law, no NPDES permit
may be issued for a period that exceeds
five (5) years.
DATES: Comments on EPA’s proposal,
including the draft permit, must be
postmarked by November 18, 2009. If
finalized as proposed, EPA would be
extending the expiration date of the
2008 CGP until midnight June 30, 2011.
ADDRESSES: Comments may be
submitted electronically, by mail, or
through hand delivery/courier. To send
comments directly to the docket for this
notice, go to the Federal Docket
Management System (FDMS) at https://
www.Regulations.gov and enter Docket
ID No. EPA–HQ–OW–2008–0238 in the
Search Box under ‘‘Comment or
Submission.’’ Comments may be sent by
electronic mail (e-mail) to owdocket@epa.gov, Attention Docket ID
No. EPA–HQ–OW–2008–0238. To send
comments by mail in hard copy or via
a Disk or CD/ROM, use the following
address: Water Docket, Environmental
Category
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Industry ......................
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?
If a discharger chooses to apply to for
coverage under the 2008 CGP, the
permit provides specific requirements
for preventing contamination of
stormwater discharges from the
following construction activities:
North American
Industry Classification System
(NAICS) Code
Examples of affected entities
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, Developing and General Contracting ..............................................................................
233
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.
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Protection Agency, mailcode: 2822T,
1200 Pennsylvania Ave., NW.,
Washington, DC 20460, Attention
Docket ID No. EPA–HQ–OW–2008–
0238. To send comments by hand
delivery or courier, deliver your
comments to: Public Reading Room,
Room B102, EPA West Building, 1301
Constitution Avenue, NW., Washington,
DC 20004, Attention Docket ID No.
EPA–HQ–OW–2008–0238. Further
instructions for submitting comments
are provided in Section I.C.
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Eligibility for coverage under the 2008
CGP is 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 permit is effective only
in those areas where EPA is the
permitting authority. A list of eligible
areas is included in Appendix B of the
2008 CGP.
B. How Can I Get Copies of This
Document and Other Related
Information?
1. Docket. EPA has established an
official public docket for this action
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under Docket ID No. EPA–HQ–OW–
2008–0238. The official public docket is
the collection of materials that is
available for public viewing at the Water
Docket in the EPA Docket Center, (EPA/
DC) EPA West, Room 3334, 1301
Constitution Ave., NW., Washington,
DC 20460. Although all documents in
the docket are listed in an index, some
information is not publicly available,
i.e., Confidential Business Information
(CBI) or other information whose
disclosure is restricted by statute.
Publicly available docket materials are
available electronically through
www.regulations.gov and in hard copy
at the EPA Docket Center Public
Reading Room, 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
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number for the Water Docket is (202)
566–2426.
2. Electronic Access. You may access
this Federal Register document
electronically through the EPA Internet
under the Federal Register listings at
https://www.epa.gov/fedrgstr/. Electronic
versions of the final permit and fact
sheet are available at EPA’s stormwater
Web site https://www.epa.gov/npdes/
stormwater.
An electronic version of the public
docket is available through EPA’s
electronic public docket and comment
system, EPA Dockets. You may use EPA
Dockets at https://www.regulations.gov/
fdmspublic/component/main view
public comments, access the index
listing of the contents of the official
public docket, and to access those
documents in the public docket that are
available electronically. Once in the
system, select ‘‘search’’, then key in the
appropriate docket identification
number.
Certain types of information will not
be placed in the EPA Dockets.
Information claimed as CBI and other
information whose disclosure is
restricted by statute, which is not
included in the official public docket,
will not be available for public viewing
in EPA’s electronic public docket. EPA
policy is that copyrighted material will
not be placed in EPA’s electronic public
docket but will be available only in
printed, paper form in the official public
docket. Although not all docket
materials may be available
electronically, you may still access any
of the publicly available docket
materials through the docket facility
identified in Section I.B.1.
Submitting CBI. Do not submit this
information to EPA through
regulations.gov or e-mail. Clearly mark
all of the information that you claim to
be CBI. For CBI information on
computer disks mailed to EPA, mark the
surface of the disk as CBI. Also identify
electronically the specific information
contained in the disk or that you claim
is CBI. In addition to one complete
version of the specific information
claimed as CBI, you must submit a copy
that does not contain the information
claimed as CBI for inclusion in the
public document. Information so
marked will not be disclosed except in
accordance with procedures set forth in
40 CFR Part 2.
For public commenters, it is
important to note that EPA’s policy is
that public comments, whether
submitted electronically or in paper,
will be made available for public
viewing in EPA’s electronic public
docket as EPA receives them and
without change, unless the comment
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16:51 Oct 16, 2009
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contains copyrighted material, CBI, or
other information whose disclosure is
restricted by statute. When EPA
identifies a comment containing
copyrighted material, EPA will provide
a reference to that material in the
version of the comment that is placed in
EPA’s electronic public docket. The
entire printed comment, including the
copyrighted material, will be available
in the public docket.
Public comments submitted on
computer disks that are mailed or
delivered to the docket will be
transferred to EPA’s electronic public
docket. Public comments that are
mailed or delivered to the docket will be
scanned and placed in EPA’s electronic
public docket. Where practical, physical
objects will be photographed, and the
photograph will be placed in EPA’s
electronic public docket along with a
brief description written by the docket
staff.
C. How and to Whom Do I Submit
Comments?
You may submit comments
electronically, by mail, or through hand
delivery/courier. To ensure proper
receipt by EPA, identify the appropriate
docket identification number in the
subject line on the first page of your
comment. To ensure that EPA can read,
understand, and therefore properly
respond to comments, the Agency
would prefer that commenters cite,
where possible, the paragraph(s) or
section in the fact sheet or permit to
which each comment refers. Please
ensure that your comments are
submitted within the specified comment
period. Comments received after the
close of the comment period will be
marked ‘‘late.’’ EPA is not required to
consider these late comments.
1. Electronically. If you submit an
electronic comment as prescribed
below, EPA recommends that you
include your name, mailing address,
and an e-mail address or other contact
information in the body of your
comment. Also include this contact
information on the outside of any disk
or CD–ROM you submit, and in any
cover letter accompanying the disk or
CD–ROM. This ensures that you can be
identified as the submitter of the
comment and allows EPA to contact you
in case EPA cannot read your comment
due to technical difficulties or needs
further information on the substance of
your comment. EPA’s policy is that EPA
will not edit your comment, and any
identifying or contact information
provided in the body of a comment will
be included as part of the comment that
is placed in the official public docket,
and made available in EPA’s electronic
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public docket. 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.
i. EPA Dockets. Your use of EPA’s
electronic public docket to submit
comments to EPA electronically is
EPA’s preferred method for receiving
comments. The system is an
‘‘anonymous access’’ system, which
means EPA will not know your identity,
e-mail address, or other contact
information unless you provide it in the
body of your comment.
ii. E-mail. In contrast to EPA’s
electronic public docket, EPA’s e-mail
system is not an ‘‘anonymous access’’
system. If you send an e-mail comment
directly to the Docket without going
through EPA’s electronic public docket,
EPA’s e-mail system automatically
captures your e-mail address. E-mail
addresses that are automatically
captured by EPA’s e-mail system are
included as part of the comment that is
placed in the official public docket, and
made available in EPA’s electronic
public docket.
iii. Disk or CD–ROM. These electronic
submissions will be accepted in
Microsoft Word or ASCII file format.
Avoid the use of special characters and
any form of encryption.
2. By mail. Send the original and three
copies of your comments.
3. By Hand Delivery or Courier. Such
deliveries are only accepted during the
Docket’s normal hours of operation as
identified in Section I.B.
D. 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
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statements and data pertaining to the
proposed permit at the public hearing.
E. Finalizing This Action
This action will not be finalized until
after all significant public comments
have been considered and addressed.
EPA’s response to public comments
received will be included in the docket
as part of the final action. Once the final
permit becomes effective, operators of
new and unpermitted ongoing
construction projects may seek
authorization under the new 2008 CGP
prior to the midnight June 30, 2011
expiration date.
C. Who Are the EPA Regional Contacts
for This Permit?
For EPA Region 1, contact Jessica
Hing at tel.: (617) 918–1560 or e-mail at
hing.jessica@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 Dick
Hetherington at tel.: (206) 553–1941 or
e-mail at hetherington.dick@epa.gov.
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II. Background of Permit
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 discharges
through the issuance of National
Pollutant Discharge Elimination System
(‘‘NPDES’’) permits, which may be
issued for fixed terms that may not
exceed five (5) years. 33 U.S.C.
1342(b)(1)(B).
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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. EPA
is proposing to extend the expiration
date of the 2008 CGP under the statutory
and regulatory authority cited above.
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).
B. Summary of 2008 CGP
EPA announced the issuance of the
2008 CGP on July 14, 2008. See 73 FR
40338. Construction operators choosing
to be covered by the 2008 CGP must
certify in their notice of intent (NOI)
that they meet the requisite eligibility
requirements, described in Part 1.3 of
the permit. If eligible, operators are
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authorized to discharge under this
permit in accordance with Part 2.
Permittees must install and implement
control measures to meet the effluent
limits applicable to all dischargers in
Part 3, and must inspect such
stormwater controls and repair or
modify them in accordance with Part 4.
The permit in Part 5 requires all
construction operators to prepare a
stormwater pollution prevention plan
(SWPPP) that identifies all sources of
pollution, and describes control
measures used to minimize pollutants
discharged from the construction site.
Part 6 details the requirements for
terminating coverage under the permit.
The 2008 CGP permit provides
coverage for discharges from
construction sites that occur in areas not
covered by an approved State NPDES
program. EPA Regions 1, 2, 3, 5, 6, 7,
8, 9, and 10 issued the 2008 CGP to
replace the expired 2003 CGP for
operators of new and unpermitted
ongoing construction projects. The
geographic coverage and scope of the
2008 CGP is listed in Appendix B of the
permit.
C. What Is EPA’s Rationale for the
Modification of the 2008 CGP for a OneYear Extension of the Expiration Date?
As stated, EPA proposes to modify the
2008 CGP by extending, by one year, the
expiration date of the 2008 CGP. This
proposed action is necessary due to
EPA’s schedule for finalizing effluent
limitations guidelines (ELG) and new
source performance standards (NSPS)
(hereinafter, ELG) for the construction
and development (C&D) point source
category, and the anticipated timeframes
associated with issuing a new CGP that
incorporates the substantive
requirements of the C&D ELG. The
permit modification for the proposed
one-year extension of the 2008 CGP is
based on actions and initiatives the
Agency is undertaking or planning to
undertake and the resulting resource
demands they are placing on EPA’s
NPDES stormwater program. The
cumulative impact of these new
initiatives will limit the Agency’s ability
to meet a current seven-month
timeframe to incorporate the
requirements of the C&D ELG into a new
CGP before midnight June 30, 2010.
EPA is required by court order to
publish and promulgate proposed ELGs
and NSPSs for the C&D point source
category by December 1, 2008 and
publish and promulgate final ELGs for
the C&D point source category by
December 1, 2009. See NRDC, et al. v.
U.S. EPA, No CV–0408307 (C.D. Cal.)
(Permanent Injunction and Judgment,
December 5, 2006). Any NPDES permit
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issued after the effective date of the C&D
ELG, whether issued by EPA or an
authorized state, must incorporate the
substantive technology-based
requirements of the ELG into the permit.
The expiration of the 2008 CGP on
midnight June 30, 2010, currently gives
EPA approximately seven months to
propose and finalize a new CGP, which
incorporates the C&D ELG requirements,
before midnight June 30, 2010. For a
number of reasons, EPA needs more
time to incorporate the C&D ELG into a
new CGP and to finalize the permit by
midnight June 30, 2010.
The current seven-month timeframe
to propose and finalize a new permit is
impracticable based on EPA’s past
experience in issuing stormwater
general permits, in general, and with the
construction general permit specifically.
In the past, EPA required an estimated
eighteen months to propose and finalize
the 2003 CGP, and a similar amount of
time for the previous construction
general permits. While EPA does not
believe the 2008 Multi-Sector General
Permit (MSGP) for stormwater
discharges associated with industrial
activities is typical, that permit required
almost three years to finalize. Beyond
incorporating updated modifications to
the permit based on changes to the
technology-based and water qualitybased effluent limitations into the
permit, EPA is required to conduct
many additional tasks that are
automatically required of final Federal
actions, such as conducting
consultations under the Endangered
Species Act and National Historic
Properties Act, obtaining CWA section
401 certifications for the permit from
States and Indian Country lands,
providing the public with an
opportunity to comment, and
responding to all comments received
during the public comment period.
Separately, these tasks have historically
required more than seven months. The
combined effect of these tasks that are
each necessary to issue a general permit
on EPA’s schedule for permit issuance
is to make a seven-month permit
issuance timeframe impracticable.
EPA is undertaking or planning to
undertake actions that are putting new
demands on the Agency’s resources in
the NPDES stormwater program. These
new required actions and initiatives will
compete for the Agency’s resources
needed to issue a new CGP. The Agency
did not expect these additional required
actions or initiatives when the 2008
CGP was issued in July 2008. For
instance, in October 2008, the National
Research Council (NRC) of the National
Academy of Sciences released its report
on EPA’s national stormwater program
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(Urban Stormwater Management in the
United States, October 2008) (available
at https://www.epa.gov/npdes/pubs/
nrc_stormwaterreport.pdf), which
recommended a number of fundamental
changes to the way in which EPA’s
stormwater program under the CWA is
effectuated. The NRC report states that
stormwater discharges from the built
environment remains one of the greatest
challenges of modern water pollution
control, ‘‘as this source of
contamination is a principal contributor
to water quality impairment of
waterbodies nationwide.’’ The NRC
found that the current regulatory
approach by EPA under the CWA is not
adequately controlling all sources of
stormwater discharge that are
contributing to waterbody impairment.
NRC recommended that EPA address
stormwater discharges from impervious
land cover and promote practices that
harvest, infiltrate, and evapotranspirate
stormwater to prevent it from being
discharged, which is critical to reducing
the volume and pollutant loading to our
Nation’s waters. Since the release of the
NRC report, EPA has devoted significant
resources to the consideration of the
report’s recommendations and to a
determination of the best ways to
strengthen controls on stormwater
discharges nationwide. EPA anticipates
expending significant resources in both
the short and long term in addressing
the NRC’s recommendations. The
resource demands on the Agency that
are necessary to respond to the report’s
recommendations were not present
when EPA issued the final 2008 CGP,
and were not fully factored into the
anticipated timeline for issuing a CGP
that incorporates the C&D ELG by
midnight June 30, 2010.
In addition, on May 12, 2009,
President Obama signed Executive
Order (E.O.) 13508, Chesapeake Bay
Protection and Restoration (available at,
https://
executiveorder.chesapeakebay.net/
default.aspx). The President’s E.O.,
under section 202(a), directed EPA to
define the next generation of tools and
actions to restore water quality in the
Chesapeake Bay and describe the
changes to be made to regulations,
programs, and policies to implement
these actions. EPA issued a draft 202(a)
Report on September 9, 2009. EPA will
finalize the section 202(a) Report in
November 2009 and issue a final
strategy for protecting and restoring the
Chesapeake Bay on May 12, 2010. The
completion of these tasks and any
resulting regulatory or programmatic
actions that are necessary to carry out
the E.O. are a high priority for the
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federal government, and will consume
resources that will not be available to
issue a new CGP by midnight June 30,
2010.
For the reasons discussed above, EPA
proposes to modify the 2008 CGP in
order to extend the current midnight
June 30, 2010 expiration date by one
year to midnight June 30, 2011. This
will give EPA approximately the same
time period, eighteen months, which the
Agency required to issue the 2003 CGP.
EPA requests comments on this
proposed modification of the 2008 CGP
to extend the expiration date to
midnight June 30, 2011.
EPA believes it is imperative that EPA
has sufficient time to incorporate the
C&D ELG into the CGP and issue a new
CGP prior to the existing permit’s
expiration date. If EPA does not issue a
new CGP before expiration of the
existing permit, no new construction
projects may be permitted under the
CGP, leaving individual NPDES permits
as the only available option for
permitting new projects. The sole
reliance on individual permits will
mean that discharge authorizations will
be delayed due to the greater amount of
time and Agency resources that are
required for developing and issuing
individual permits. In turn, construction
projects that need to begin construction
activity on or after midnight June 30,
2010 will be delayed for an uncertain
amount of time until EPA can review
their individual permit application and
issue the necessary permits. Rather than
risk detrimental delays to new
construction projects, with no clear
benefit to our nation’s surface waters,
EPA has decided that it is advisable to
instead modify the 2008 CGP to extend
the expiration date by 1 year to
midnight June 30, 2011.
D. EPA’s Authority To Modify NPDES
Permits
EPA regulations establish when the
permitting authority may make
modifications to existing NPDES
permits. In relevant part, EPA
regulations state that ‘‘[w]hen the
Director receives any information * * *
he or she may determine whether or not
one or more of the causes listed in
paragraph (a) * * * of this section for
modification * * * exist. If cause exists,
the Director may modify * * * the
permit accordingly, subject to the
limitations of 40 CFR 124.5(c).’’ 40 CFR
122.62. For purposes of this Federal
Register notice, the relevant cause for
modification is at 40 CFR 122.62(a)(2),
which states a permit may be modified
when ‘‘[t]he Director has received new
information’’ and that information was
not available at the time of permit
E:\FR\FM\19OCN1.SGM
19OCN1
53498
Federal Register / Vol. 74, No. 200 / Monday, October 19, 2009 / Notices
issuance * * * and would have
justified the application of different
permit conditions at the time of
issuance.’’ Pursuant to EPA regulations,
‘‘[w]hen a permit is modified, only the
conditions subject to the modification
are reopened.’’ 40 CFR 122.62.
In the case of the 2008 CGP, a permit
modification is justified based on the
new information EPA has received since
issuance of the 2008 CGP in July 2008,
described above in Section II.C, EPA is
undertaking or planning to undertake
actions that are putting new demands
on the Agency’s resources in the NPDES
stormwater program. The contents and
the resulting resource demands of the
NRC Report and the Chesapeake Bay
E.O. were not available at the time of
issuance of the 2008 CGP. Meeting these
new demands while implementing new
effluent guidelines and new source
performance standards is not practical
in a seven-month time period. If this
information was available at the time of
permit issuance, it would have justified
EPA establishing an expiration date for
the 2008 CGP later than midnight June
30, 2010. As a result, cause exists under
EPA regulations to justify modification
of the 2008 CGP to extend the expiration
date of the permit from midnight June
30, 2010 to midnight June 30, 2011.
Authority: Clean Water Act, 33 U.S.C. 1251
et seq.
Dated: October 9, 2009.
Ira Leighton,
Acting Regional Administrator, EPA
Region 1.
Dated: October 9, 2009.
Jose C. Font,
Acting Division Director, Caribbean
Environmental Protection Division, EPA
Region 2.
Dated: October 8, 2009.
Kevin Bricke,
Acting Division Director, Division of
Environmental Planning & Protection, EPA
Region 2.
Dated: October 9, 2009.
Jon M. Capacasa,
Director, Water Protection Division, EPA
Region 3.
Dated: October 9, 2009.
Tinka G. Hyde,
Director, Water Division, EPA Region 5.
Dated: October 9, 2009.
Bill Luthans,
Acting Director, Water Quality Protection
Division, EPA Region 6.
Dated: October 8, 2009.
Karen A. Flournoy,
Acting Director, Wetlands and Pesticides
Division, EPA Region 7.
Dated: October 8, 2009.
Stephen S. Tuber,
Assistant Regional Administrator, Office of
Partnerships & Regulatory Assistance, EPA
Region 8.
Dated: October 9, 2009.
Alexis Strauss,
Director, Water Division, EPA Region 9.
Dated: October 9, 2009.
Christine Psyk,
Acting Director, Office of Water and
Watersheds, EPA Region 10.
[FR Doc. E9–25123 Filed 10–16–09; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[EPA–HQ–OAR–2008–0699; FRL–8969–1]
Review of the National Ambient Air
Quality Standards for Ozone
sroberts on DSKD5P82C1PROD with NOTICES
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Availability of draft document
for public review and comment.
SUMMARY: On or about October 1, 2009,
the National Center for Environmental
Assessment (NCEA) and the Office of
Air Quality Planning and Standards
(OAQPS) of EPA is making available for
public review and comment a draft
document titled Integrated Review Plan
for the Ozone National Ambient Air
Quality Standards Review—External
Review Draft.
VerDate Nov<24>2008
16:51 Oct 16, 2009
Jkt 220001
PO 00000
Frm 00037
Fmt 4703
Sfmt 4703
This document contains the plans for
the new periodic review of the air
quality criteria for ozone (O3)-related
effects on public health and public
welfare and the current O3 standards or
any revised standards that may result
from the reconsideration of the 2008 O3
standards. This draft Integrated Review
Plan (IRP) is being released for the
purpose of consulting with the Clean
Air Scientific Advisory Committee
(CASAC) of EPA’s Science Advisory
Board 1 and obtaining public comment
on the Agency’s plans. The final IRP
will be informed by comments received
from the CASAC and the public. The
draft IRP will be posted on the Agency’s
Technology Transfer Network (TTN)
Web site at: https://www.epa.gov/ttn/
naaqs/standards/ozone/
s_o3_index.html. The draft IRP may be
accessed in the ‘‘Documents from
Current Review’’ section under
‘‘Planning Documents.’’
1 For purposes of this review, the 7member CASAC has been supplemented by
additional scientific experts collectively
referred to as the CASAC O3 NAAQS Review
Panel.
DATES: Comments should be submitted
on or before November 6, 2009.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
OAR–2008–0699, by one of the
following methods:
b www.regulations.gov: Follow the
on-line instructions for submitting
comments.
b E-mail: a-and-r-Docket(epa.gov).
b Fax: 202–566–9744.
b Mail: EPA–HQ–OAR–2008–0699,
Environmental Protection Agency, Mail
code 6102T, 1200 Pennsylvania Ave.,
NW., Washington, DC 20460. Please
include a total of two copies.
Hand Delivery: Environmental
Protection Agency, EPA West, Room
3334, 1301 Constitution Ave., NW.,
Washington, DC. 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: Direct your comments to
Docket ID No. EPA–HQ–OAR–2008–
0699. The 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
E:\FR\FM\19OCN1.SGM
19OCN1
Agencies
[Federal Register Volume 74, Number 200 (Monday, October 19, 2009)]
[Notices]
[Pages 53494-53498]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-25123]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[FRL-8970-1, EPA-HQ-OW-2008-0238]
Modification to 2008 National Pollutant Discharge Elimination
System (NPDES) General Permit for Stormwater Discharges From
Construction Activities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
-----------------------------------------------------------------------
SUMMARY: EPA Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10 today are proposing
for public comment a modification to the 2008 National Pollutant
Discharge Elimination System (NPDES) general permits for stormwater
discharges associated with construction activity in order to extend by
one-year the expiration date of the permit. Hereinafter, these NPDES
general permits will be referred to as ``permit'' or ``2008
construction general permit'' or ``2008 CGP.'' The 2008 CGP was
originally issued for a period not to exceed two (2) years. Today, EPA
proposes to modify the CGP in order to extend the 2 year term of the
2008 CGP by one year so that it expires on June 30, 2011, instead of
June 30, 2010. If EPA finalizes this action, the 2008 CGP will be in
effect for a period of three (3) years. By Federal law, no NPDES permit
may be issued for a period that exceeds five (5) years.
DATES: Comments on EPA's proposal, including the draft permit, must be
postmarked by November 18, 2009. If finalized as proposed, EPA would be
extending the expiration date of the 2008 CGP until midnight June 30,
2011.
ADDRESSES: Comments may be submitted electronically, by mail, or
through hand delivery/courier. To send comments directly to the docket
for this notice, go to the Federal Docket Management System (FDMS) at
https://www.Regulations.gov and enter Docket ID No. EPA-HQ-OW-2008-0238
in the Search Box under ``Comment or Submission.'' Comments may be sent
by electronic mail (e-mail) to ow-docket@epa.gov, Attention Docket ID
No. EPA-HQ-OW-2008-0238. To send comments by mail in hard copy or via a
Disk or CD/ROM, use the following address: Water Docket, Environmental
Protection Agency, mailcode: 2822T, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460, Attention Docket ID No. EPA-HQ-OW-2008-0238. To
send comments by hand delivery or courier, deliver your comments to:
Public Reading Room, Room B102, EPA West Building, 1301 Constitution
Avenue, NW., Washington, DC 20004, Attention Docket ID No. EPA-HQ-OW-
2008-0238. Further instructions for submitting comments are provided in
Section I.C.
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?
If a discharger chooses to apply to for coverage under the 2008
CGP, the permit provides specific requirements for preventing
contamination of stormwater discharges from 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 is 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 permit is effective
only in those areas where EPA is the permitting authority. A list of
eligible areas is included in Appendix B of the 2008 CGP.
B. How Can I Get Copies of This Document and Other Related Information?
1. Docket. EPA has established an official public docket for this
action under Docket ID No. EPA-HQ-OW-2008-0238. The official public
docket is the collection of materials that is available for public
viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460.
Although all documents in the docket are listed in an index, some
information is not publicly available, i.e., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Publicly available docket materials are available
electronically through www.regulations.gov and in hard copy at the EPA
Docket Center Public Reading Room, 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
[[Page 53495]]
number for the Water Docket is (202) 566-2426.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the Federal Register
listings at https://www.epa.gov/fedrgstr/. Electronic versions of the
final permit and fact sheet are available at EPA's stormwater Web site
https://www.epa.gov/npdes/stormwater.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at https://www.regulations.gov/fdmspublic/component/main
view public comments, access the index listing of the contents of the
official public docket, and to access those documents in the public
docket that are available electronically. Once in the system, select
``search'', then key in the appropriate docket identification number.
Certain types of information will not be placed in the EPA Dockets.
Information claimed as CBI and other information whose disclosure is
restricted by statute, which is not included in the official public
docket, will not be available for public viewing in EPA's electronic
public docket. EPA policy is that copyrighted material will not be
placed in EPA's electronic public docket but will be available only in
printed, paper form in the official public docket. Although not all
docket materials may be available electronically, you may still access
any of the publicly available docket materials through the docket
facility identified in Section I.B.1.
Submitting CBI. Do not submit this information to EPA through
regulations.gov or e-mail. Clearly mark all of the information that you
claim to be CBI. For CBI information on computer disks mailed to EPA,
mark the surface of the disk as CBI. Also identify electronically the
specific information contained in the disk or that you claim is CBI. In
addition to one complete version of the specific information claimed as
CBI, you must submit a copy that does not contain the information
claimed as CBI for inclusion in the public document. Information so
marked will not be disclosed except in accordance with procedures set
forth in 40 CFR Part 2.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing in EPA's electronic public
docket as EPA receives them and without change, unless the comment
contains copyrighted material, CBI, or other information whose
disclosure is restricted by statute. When EPA identifies a comment
containing copyrighted material, EPA will provide a reference to that
material in the version of the comment that is placed in EPA's
electronic public docket. The entire printed comment, including the
copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to EPA's electronic public
docket. Public comments that are mailed or delivered to the docket will
be scanned and placed in EPA's electronic public docket. Where
practical, physical objects will be photographed, and the photograph
will be placed in EPA's electronic public docket along with a brief
description written by the docket staff.
C. How and to Whom Do I Submit Comments?
You may submit comments electronically, by mail, or through hand
delivery/courier. To ensure proper receipt by EPA, identify the
appropriate docket identification number in the subject line on the
first page of your comment. To ensure that EPA can read, understand,
and therefore properly respond to comments, the Agency would prefer
that commenters cite, where possible, the paragraph(s) or section in
the fact sheet or permit to which each comment refers. Please ensure
that your comments are submitted within the specified comment period.
Comments received after the close of the comment period will be marked
``late.'' EPA is not required to consider these late comments.
1. Electronically. If you submit an electronic comment as
prescribed below, EPA recommends that you include your name, mailing
address, and an e-mail address or other contact information in the body
of your comment. Also include this contact information on the outside
of any disk or CD-ROM you submit, and in any cover letter accompanying
the disk or CD-ROM. This ensures that you can be identified as the
submitter of the comment and allows EPA to contact you in case EPA
cannot read your comment due to technical difficulties or needs further
information on the substance of your comment. EPA's policy is that EPA
will not edit your comment, and any identifying or contact information
provided in the body of a comment will be included as part of the
comment that is placed in the official public docket, and made
available in EPA's electronic public docket. 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.
i. EPA Dockets. Your use of EPA's electronic public docket to
submit comments to EPA electronically is EPA's preferred method for
receiving comments. The system is an ``anonymous access'' system, which
means EPA will not know your identity, e-mail address, or other contact
information unless you provide it in the body of your comment.
ii. E-mail. In contrast to EPA's electronic public docket, EPA's e-
mail system is not an ``anonymous access'' system. If you send an e-
mail comment directly to the Docket without going through EPA's
electronic public docket, EPA's e-mail system automatically captures
your e-mail address. E-mail addresses that are automatically captured
by EPA's e-mail system are included as part of the comment that is
placed in the official public docket, and made available in EPA's
electronic public docket.
iii. Disk or CD-ROM. These electronic submissions will be accepted
in Microsoft Word or ASCII file format. Avoid the use of special
characters and any form of encryption.
2. By mail. Send the original and three copies of your comments.
3. By Hand Delivery or Courier. Such deliveries are only accepted
during the Docket's normal hours of operation as identified in Section
I.B.
D. 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
[[Page 53496]]
statements and data pertaining to the proposed permit at the public
hearing.
E. Finalizing This Action
This action will not be finalized until after all significant
public comments have been considered and addressed. EPA's response to
public comments received will be included in the docket as part of the
final action. Once the final permit becomes effective, operators of new
and unpermitted ongoing construction projects may seek authorization
under the new 2008 CGP prior to the midnight June 30, 2011 expiration
date.
C. Who Are the EPA Regional Contacts for This Permit?
For EPA Region 1, contact Jessica Hing at tel.: (617) 918-1560 or
e-mail at hing.jessica@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 Dick Hetherington at tel.: (206) 553-
1941 or e-mail at hetherington.dick@epa.gov.
II. Background of Permit
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 discharges through the issuance of National Pollutant Discharge
Elimination System (``NPDES'') permits, which may be issued for fixed
terms that may not exceed five (5) years. 33 U.S.C. 1342(b)(1)(B).
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. EPA is proposing to extend the
expiration date of the 2008 CGP under the statutory and regulatory
authority cited above.
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).
B. Summary of 2008 CGP
EPA announced the issuance of the 2008 CGP on July 14, 2008. See 73
FR 40338. Construction operators choosing to be covered by the 2008 CGP
must certify in their notice of intent (NOI) that they meet the
requisite eligibility requirements, described in Part 1.3 of the
permit. If eligible, operators are authorized to discharge under this
permit in accordance with Part 2. Permittees must install and implement
control measures to meet the effluent limits applicable to all
dischargers in Part 3, and must inspect such stormwater controls and
repair or modify them in accordance with Part 4. The permit in Part 5
requires all construction operators to prepare a stormwater pollution
prevention plan (SWPPP) that identifies all sources of pollution, and
describes control measures used to minimize pollutants discharged from
the construction site. Part 6 details the requirements for terminating
coverage under the permit.
The 2008 CGP permit provides coverage for discharges from
construction sites that occur in areas not covered by an approved State
NPDES program. EPA Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10 issued the
2008 CGP to replace the expired 2003 CGP for operators of new and
unpermitted ongoing construction projects. The geographic coverage and
scope of the 2008 CGP is listed in Appendix B of the permit.
C. What Is EPA's Rationale for the Modification of the 2008 CGP for a
One-Year Extension of the Expiration Date?
As stated, EPA proposes to modify the 2008 CGP by extending, by one
year, the expiration date of the 2008 CGP. This proposed action is
necessary due to EPA's schedule for finalizing effluent limitations
guidelines (ELG) and new source performance standards (NSPS)
(hereinafter, ELG) for the construction and development (C&D) point
source category, and the anticipated timeframes associated with issuing
a new CGP that incorporates the substantive requirements of the C&D
ELG. The permit modification for the proposed one-year extension of the
2008 CGP is based on actions and initiatives the Agency is undertaking
or planning to undertake and the resulting resource demands they are
placing on EPA's NPDES stormwater program. The cumulative impact of
these new initiatives will limit the Agency's ability to meet a current
seven-month timeframe to incorporate the requirements of the C&D ELG
into a new CGP before midnight June 30, 2010.
EPA is required by court order to publish and promulgate proposed
ELGs and NSPSs for the C&D point source category by December 1, 2008
and publish and promulgate final ELGs for the C&D point source category
by December 1, 2009. See NRDC, et al. v. U.S. EPA, No CV-0408307 (C.D.
Cal.) (Permanent Injunction and Judgment, December 5, 2006). Any NPDES
permit
[[Page 53497]]
issued after the effective date of the C&D ELG, whether issued by EPA
or an authorized state, must incorporate the substantive technology-
based requirements of the ELG into the permit. The expiration of the
2008 CGP on midnight June 30, 2010, currently gives EPA approximately
seven months to propose and finalize a new CGP, which incorporates the
C&D ELG requirements, before midnight June 30, 2010. For a number of
reasons, EPA needs more time to incorporate the C&D ELG into a new CGP
and to finalize the permit by midnight June 30, 2010.
The current seven-month timeframe to propose and finalize a new
permit is impracticable based on EPA's past experience in issuing
stormwater general permits, in general, and with the construction
general permit specifically. In the past, EPA required an estimated
eighteen months to propose and finalize the 2003 CGP, and a similar
amount of time for the previous construction general permits. While EPA
does not believe the 2008 Multi-Sector General Permit (MSGP) for
stormwater discharges associated with industrial activities is typical,
that permit required almost three years to finalize. Beyond
incorporating updated modifications to the permit based on changes to
the technology-based and water quality-based effluent limitations into
the permit, EPA is required to conduct many additional tasks that are
automatically required of final Federal actions, such as conducting
consultations under the Endangered Species Act and National Historic
Properties Act, obtaining CWA section 401 certifications for the permit
from States and Indian Country lands, providing the public with an
opportunity to comment, and responding to all comments received during
the public comment period. Separately, these tasks have historically
required more than seven months. The combined effect of these tasks
that are each necessary to issue a general permit on EPA's schedule for
permit issuance is to make a seven-month permit issuance timeframe
impracticable.
EPA is undertaking or planning to undertake actions that are
putting new demands on the Agency's resources in the NPDES stormwater
program. These new required actions and initiatives will compete for
the Agency's resources needed to issue a new CGP. The Agency did not
expect these additional required actions or initiatives when the 2008
CGP was issued in July 2008. For instance, in October 2008, the
National Research Council (NRC) of the National Academy of Sciences
released its report on EPA's national stormwater program (Urban
Stormwater Management in the United States, October 2008) (available at
https://www.epa.gov/npdes/pubs/nrc_stormwaterreport.pdf), which
recommended a number of fundamental changes to the way in which EPA's
stormwater program under the CWA is effectuated. The NRC report states
that stormwater discharges from the built environment remains one of
the greatest challenges of modern water pollution control, ``as this
source of contamination is a principal contributor to water quality
impairment of waterbodies nationwide.'' The NRC found that the current
regulatory approach by EPA under the CWA is not adequately controlling
all sources of stormwater discharge that are contributing to waterbody
impairment. NRC recommended that EPA address stormwater discharges from
impervious land cover and promote practices that harvest, infiltrate,
and evapotranspirate stormwater to prevent it from being discharged,
which is critical to reducing the volume and pollutant loading to our
Nation's waters. Since the release of the NRC report, EPA has devoted
significant resources to the consideration of the report's
recommendations and to a determination of the best ways to strengthen
controls on stormwater discharges nationwide. EPA anticipates expending
significant resources in both the short and long term in addressing the
NRC's recommendations. The resource demands on the Agency that are
necessary to respond to the report's recommendations were not present
when EPA issued the final 2008 CGP, and were not fully factored into
the anticipated timeline for issuing a CGP that incorporates the C&D
ELG by midnight June 30, 2010.
In addition, on May 12, 2009, President Obama signed Executive
Order (E.O.) 13508, Chesapeake Bay Protection and Restoration
(available at, https://executiveorder.chesapeakebay.net/default.aspx).
The President's E.O., under section 202(a), directed EPA to define the
next generation of tools and actions to restore water quality in the
Chesapeake Bay and describe the changes to be made to regulations,
programs, and policies to implement these actions. EPA issued a draft
202(a) Report on September 9, 2009. EPA will finalize the section
202(a) Report in November 2009 and issue a final strategy for
protecting and restoring the Chesapeake Bay on May 12, 2010. The
completion of these tasks and any resulting regulatory or programmatic
actions that are necessary to carry out the E.O. are a high priority
for the federal government, and will consume resources that will not be
available to issue a new CGP by midnight June 30, 2010.
For the reasons discussed above, EPA proposes to modify the 2008
CGP in order to extend the current midnight June 30, 2010 expiration
date by one year to midnight June 30, 2011. This will give EPA
approximately the same time period, eighteen months, which the Agency
required to issue the 2003 CGP. EPA requests comments on this proposed
modification of the 2008 CGP to extend the expiration date to midnight
June 30, 2011.
EPA believes it is imperative that EPA has sufficient time to
incorporate the C&D ELG into the CGP and issue a new CGP prior to the
existing permit's expiration date. If EPA does not issue a new CGP
before expiration of the existing permit, no new construction projects
may be permitted under the CGP, leaving individual NPDES permits as the
only available option for permitting new projects. The sole reliance on
individual permits will mean that discharge authorizations will be
delayed due to the greater amount of time and Agency resources that are
required for developing and issuing individual permits. In turn,
construction projects that need to begin construction activity on or
after midnight June 30, 2010 will be delayed for an uncertain amount of
time until EPA can review their individual permit application and issue
the necessary permits. Rather than risk detrimental delays to new
construction projects, with no clear benefit to our nation's surface
waters, EPA has decided that it is advisable to instead modify the 2008
CGP to extend the expiration date by 1 year to midnight June 30, 2011.
D. EPA's Authority To Modify NPDES Permits
EPA regulations establish when the permitting authority may make
modifications to existing NPDES permits. In relevant part, EPA
regulations state that ``[w]hen the Director receives any information *
* * he or she may determine whether or not one or more of the causes
listed in paragraph (a) * * * of this section for modification * * *
exist. If cause exists, the Director may modify * * * the permit
accordingly, subject to the limitations of 40 CFR 124.5(c).'' 40 CFR
122.62. For purposes of this Federal Register notice, the relevant
cause for modification is at 40 CFR 122.62(a)(2), which states a permit
may be modified when ``[t]he Director has received new information''
and that information was not available at the time of permit
[[Page 53498]]
issuance * * * and would have justified the application of different
permit conditions at the time of issuance.'' Pursuant to EPA
regulations, ``[w]hen a permit is modified, only the conditions subject
to the modification are reopened.'' 40 CFR 122.62.
In the case of the 2008 CGP, a permit modification is justified
based on the new information EPA has received since issuance of the
2008 CGP in July 2008, described above in Section II.C, EPA is
undertaking or planning to undertake actions that are putting new
demands on the Agency's resources in the NPDES stormwater program. The
contents and the resulting resource demands of the NRC Report and the
Chesapeake Bay E.O. were not available at the time of issuance of the
2008 CGP. Meeting these new demands while implementing new effluent
guidelines and new source performance standards is not practical in a
seven-month time period. If this information was available at the time
of permit issuance, it would have justified EPA establishing an
expiration date for the 2008 CGP later than midnight June 30, 2010. As
a result, cause exists under EPA regulations to justify modification of
the 2008 CGP to extend the expiration date of the permit from midnight
June 30, 2010 to midnight June 30, 2011.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.
Dated: October 9, 2009.
Ira Leighton,
Acting Regional Administrator, EPA Region 1.
Dated: October 9, 2009.
Jose C. Font,
Acting Division Director, Caribbean Environmental Protection Division,
EPA Region 2.
Dated: October 8, 2009.
Kevin Bricke,
Acting Division Director, Division of Environmental Planning &
Protection, EPA Region 2.
Dated: October 9, 2009.
Jon M. Capacasa,
Director, Water Protection Division, EPA Region 3.
Dated: October 9, 2009.
Tinka G. Hyde,
Director, Water Division, EPA Region 5.
Dated: October 9, 2009.
Bill Luthans,
Acting Director, Water Quality Protection Division, EPA Region 6.
Dated: October 8, 2009.
Karen A. Flournoy,
Acting Director, Wetlands and Pesticides Division, EPA Region 7.
Dated: October 8, 2009.
Stephen S. Tuber,
Assistant Regional Administrator, Office of Partnerships & Regulatory
Assistance, EPA Region 8.
Dated: October 9, 2009.
Alexis Strauss,
Director, Water Division, EPA Region 9.
Dated: October 9, 2009.
Christine Psyk,
Acting Director, Office of Water and Watersheds, EPA Region 10.
[FR Doc. E9-25123 Filed 10-16-09; 8:45 am]
BILLING CODE 6560-50-P