Modification to 2008 National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Discharges Associated With Construction Activities, 4554-4557 [2010-1743]
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Federal Register / Vol. 75, No. 18 / Thursday, January 28, 2010 / Notices
7413(a)(3) and 7413(d), has assessed a
civil penalty for these violations:
249 South 51st Avenue, Phoenix, AZ
85043;
808 County Road, Monett, MO 65708;
200 Economic Drive, Commerce, TX
75248.
EPA will not issue an order in this
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public comment period.
Dated: January 20, 2010.
Bernadette Rappold,
Director, Special Litigation and Projects
Division, Office of Enforcement and
Compliance Assurance.
[FR Doc. 2010–1741 Filed 1–27–10; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
[FRL–9107–3, EPA–HQ–OW–2008–0238]
Modification to 2008 National Pollutant
Discharge Elimination System
(NPDES) General Permit for
Stormwater Discharges Associated
With Construction Activities
AGENCY: Environmental Protection
Agency (EPA).
ACTION:
SUMMARY: EPA Regions 1, 2, 3, 5, 6, 7,
8, 9, and 10 today are modifying 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 of two (2)
years. Today, EPA is modifying 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, resulting in a permit that will be
in effect for a total period of three (3)
years. By Federal law, no NPDES permit
may be issued for a period that exceeds
five (5) years.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
If a discharger chooses to apply 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
Industry .............
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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.
DATES: EPA is modifying its 2008
Construction General Permit by
extending the permit by one year. This
permit modification is effective on
January 20, 2010. The 2008
Construction General Permit will now
Category
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.
Eligibility for coverage under the 2008
CGP is limited to operators of ‘‘new
projects’’ or ‘‘unpermitted ongoing
projects.’’ A ‘‘new project’’ is one that
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expire on midnight June 30, 2011,
instead of June 30, 2010.
Notice.
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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,
PO 00000
Frm 00032
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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 https://
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
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.
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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.
C. Response to Public Comments
EPA received 4 comments on the
proposal to extend the 2008 CGP. All
commenters were supportive of EPA’s
proposed extension. Three of the
commenters recommended that EPA
modify the 2008 CGP to extend the
expiration date of the permit for 3 years,
so that the permit would expire on June
30, 2013, instead of the proposed
expiration date of June 30, 2011, thus
making it a 5-year permit. EPA declined
to adopt the commenter’s
recommendation. It is important to
minimize the delay in issuing a new
CGP that incorporates the new federal
requirements for the discharges from
construction and development sites,
which were published in the Federal
Register December 1, 2009. 74 FR
62996. For a copy of the ‘‘Construction
and Development Effluent Limitations
Guidelines’’ (or ‘‘C&D rule’’), and other
related information, go to https://
www.epa.gov/guide/construction/.
The 2008 CGP was issued for a shorter
term than the statutorily allowed 5 years
so that the newly promulgated C&D rule
requirements could be incorporated into
the permit as soon as practicable. Many
States will be looking at the Agency’s
next CGP to gain insight into how to
implement the C&D ELG requirements
into permits. The C&D ELG established
numeric effluent limitations and
monitoring requirements, both of which
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17:16 Jan 27, 2010
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may be new to the large number of
construction sites throughout the
country. EPA would like to issue the
next CGP implementing these
requirements as soon as possible. By
promulgating a final CGP that
incorporates the C&D ELG by June 30,
2011 EPA will assist State agencies that
must reissue their permits in the next
few years and incorporate the C&D ELG
into their permits.
One commenter further recommended
that EPA make modifications to the
2008 CGP in addition to the one-year
extension of the permit. This
commenter specifically recommended
that EPA take the opportunity to
streamline the CGP and the process for
authorizing dischargers, such as through
a simplified option for single lot
construction projects, a simplified
qualified local program option, and a
certification of no pollutant discharge
added to the permit. EPA is aware of the
issues that the commenter has raised;
however, EPA is not inclined to make
further modifications to the 2008 CGP at
this time beyond the one-year extension.
The expiration date of the 2008 CGP is
the only issue for which EPA proposed
a modification; EPA believes the issues
raised by the commenter, which will
require a significant amount of time to
consider for incorporation into the
permit, are best contemplated for the
new permit to be issued prior to June
30, 2011.
D. 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 email at venezia.stephen@epa.gov, or
for Puerto Rico, contact Sergio
Bosques at tel.: (787) 977–5838 or email 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 email 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 email at bromley.eugene@epa.gov.
For EPA Region 10, contact Dick
Hetherington at tel.: (206) 553–1941
PO 00000
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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
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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).
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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 OneYear Extension of the Expiration Date?
As stated above, any NPDES permit
issued after the effective date of the C&D
rule, whether issued by EPA or an
authorized state, must incorporate the
substantive technology-based
requirements of the rule into the permit.
The effective date of the C&D rule is
February 1, 2010. Therefore, EPA’s next
permit, which will be issued after the
effective date of the C&D rule, will
require that the requirements of the rule
be incorporated into the permit. While
as discussed above, EPA wants to issue
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17:16 Jan 27, 2010
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a CGP that incorporates the C&D ELG as
soon as possible in order to provide
guidance to state permitting authorities,
today’s one-year extension is necessary
due to EPA’s judgment that an extension
of one year is needed to provide
sufficient time to incorporate the new
C&D rule requirements, provide
guidance to state permitting authorities,
and to be able to manage the additional
actions and initiatives that are being
undertaken at the same time by the
Agency. Without the one-year
extension, EPA fears that it would be
left with an inadequate amount of time
to issue a new CGP, placing potentially
thousands of construction projects at
risk of discharging without an effective
stormwater permit.
Prior to the extension, the 2008 CGP
would have expired on June 30, 2010,
giving EPA approximately seven months
to propose and finalize a new CGP. In
EPA’s judgment, the seven-month
period would have been insufficient to
properly draft new requirements that
reflect the C&D rule, and to modify
these permit conditions in response to
public comments. The seven-month
timeframe to propose and finalize a new
permit would have been 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 was
typical, that permit required almost
three years to finalize after the proposed
permit was published. 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, which
are each necessary to issue a general
permit, on EPA’s schedule for permit
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issuance is to make a seven-month
permit issuance timeframe
impracticable.
While a seven-month schedule to
finalize a new CGP would be
impracticable under the circumstances,
as discussed above, what would have
made this period of time even more
challenging is the incorporation of the
new Federal C&D rule requirements into
the general permit. The C&D rule has
introduced several concepts that may be
new to most construction sites,
including the requirement for certain
sized construction sites to comply with
a numeric effluent limitation for
turbidity. Additionally, the nonnumeric effluent limitations in the C&D
ELG will need to be properly translated
into permit conditions and modified
based on public comments received.
The additional one-year extension will
ensure that the Agency has sufficient
time to accomplish these tasks.
Also weighing heavily in favor of
extending the expiration date of the
2008 CGP are the risks associated with
failing to issue a replacement permit
prior to the 2008 CGP’s original
expiration date. If EPA fails to issue a
new CGP before the expiration of the
2008 CGP, no new construction projects
would be able to be eligible for coverage
by the 2008 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. EPA is unwilling to
risk the possibility of such delays. The
one-year extension to the 2008 CGP’s
expiration date will provide the Agency
with the time needed to issue a new
permit, without any gaps in permit
coverage.
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
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information’’ and that information was
not available at the time of permit
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 received since
issuance of the 2008 CGP in July 2008,
in terms of the new actions EPA is
planning or undertaking that are putting
new demands on the Agency’s available
resources in the NPDES stormwater
program. New actions and the resulting
resource demands have come about as a
result of EPA’s desire to respond to the
2008 National Research Council report,
Urban Stormwater Management in the
United States (see https://www.epa.gov/
npdes/pubs/nrc_stormwaterreport.pdf),
and to take action under the President’s
May 2009 Executive Order on
Chesapeake Bay Protection and
Restoration (see https://
www.whitehouse.gov/the_press_office/
Executive-Order-Chesapeake-BayProtection-and-Restoration/). Related to
these efforts, EPA has announced its
intention to initiate a national
rulemaking to establish a program to
reduce stormwater discharges from new
development and redevelopment, and to
make other regulatory improvements to
strengthen its stormwater program.
Refer to https://www.epa.gov/npdes/
stormwater/rulemaking. EPA’s meeting
these new demands, while
implementing new Federal
requirements for the construction and
development industry, is not practical
in a seven-month time period.
Additionally, at the time of the 2008
CGP was issued, EPA did not know the
final content of the C&D ELG. 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: January 20, 2010.
Curt Spalding,
Regional Administrator, EPA Region 1.
Dated: January 20, 2010.
Carl-Axel P. Soderberg,
Division Director, Caribbean Environmental
Protection Division, EPA Region 2.
Dated: January 20, 2010.
Barbara A. Finazzo,
Division Director, Division of Environmental
Planning & Protection, EPA Region 2.
Dated: January 20, 2010.
Jon M. Capacasa,
Director, Water Protection Division, EPA
Region 3.
Dated: January 20, 2010.
Timothy C. Henry,
Associate Director, Water Division, EPA
Region 5.
Dated: January 20, 2010.
Miguel I. Flores,
Director, Water Quality Protection Division,
EPA Region 6.
Dated: January 20, 2010.
William A. Spratlin,
Director, Wetlands and Pesticides Division,
EPA Region 7.
Dated: January 20, 2010.
Stephen S. Tuber,
Assistant Regional Administrator, Office of
Partnerships & Regulatory Assistance, EPA
Region 8.
Dated: January 20, 2010.
Alexis Strauss,
Director, Water Division, EPA Region 9.
Dated: January 20, 2010.
Michael A. Bussell,
Director, Office of Water and Watersheds,
EPA Region 10.
[FR Doc. 2010–1743 Filed 1–27–10; 8:45 am]
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EXPORT-IMPORT BANK OF THE
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Sunshine Act Meeting Notice
ACTION: Notice of a Partially Open
Meeting of the Board of Directors of the
Export-Import Bank of the United
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Thursday, January 28,
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TIME AND PLACE:
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ITEM NO. 1: Ex-Im Bank Advisory
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ITEM NO. 2: Ex-Im Bank Sub-Saharan
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FOR FURTHER INFORMATION CONTACT:
Office of the Secretary, 811 Vermont
Avenue, NW., Washington, DC 20571,
(202) 565–3957.
Jonathan J. Cordone,
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[FR Doc. 2010–1737 Filed 1–27–10; 8:45 am]
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Next Meeting of the North American
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AGENCY: Federal Communications
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ACTION: Notice.
SUMMARY: On January 20, 2010, the
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The intended effect of this action is to
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DATES: Thursday, February 18, 2010,
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ADDRESSES: Competition Policy
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SUPPLEMENTARY INFORMATION: Released:
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The meeting will be held at the Federal
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[Federal Register Volume 75, Number 18 (Thursday, January 28, 2010)]
[Notices]
[Pages 4554-4557]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-1743]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-9107-3, EPA-HQ-OW-2008-0238]
Modification to 2008 National Pollutant Discharge Elimination
System (NPDES) General Permit for Stormwater Discharges Associated With
Construction Activities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: EPA Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10 today are modifying
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 of two (2) years. Today,
EPA is modifying 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, resulting in a permit that will be in effect for a total
period of three (3) years. By Federal law, no NPDES permit may be
issued for a period that exceeds five (5) years.
DATES: EPA is modifying its 2008 Construction General Permit by
extending the permit by one year. This permit modification is effective
on January 20, 2010. The 2008 Construction General Permit will now
expire on midnight June 30, 2011, instead of June 30, 2010.
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 for coverage under the 2008 CGP,
the permit provides specific requirements for preventing contamination
of stormwater discharges from the following construction activities:
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North American
Industry
Category Examples of affected Classification
entities System (NAICS)
code
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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, Developing and 233
General Contracting.
Heavy Construction........ 234
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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 https://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
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.
[[Page 4555]]
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.
C. Response to Public Comments
EPA received 4 comments on the proposal to extend the 2008 CGP. All
commenters were supportive of EPA's proposed extension. Three of the
commenters recommended that EPA modify the 2008 CGP to extend the
expiration date of the permit for 3 years, so that the permit would
expire on June 30, 2013, instead of the proposed expiration date of
June 30, 2011, thus making it a 5-year permit. EPA declined to adopt
the commenter's recommendation. It is important to minimize the delay
in issuing a new CGP that incorporates the new federal requirements for
the discharges from construction and development sites, which were
published in the Federal Register December 1, 2009. 74 FR 62996. For a
copy of the ``Construction and Development Effluent Limitations
Guidelines'' (or ``C&D rule''), and other related information, go to
https://www.epa.gov/guide/construction/.
The 2008 CGP was issued for a shorter term than the statutorily
allowed 5 years so that the newly promulgated C&D rule requirements
could be incorporated into the permit as soon as practicable. Many
States will be looking at the Agency's next CGP to gain insight into
how to implement the C&D ELG requirements into permits. The C&D ELG
established numeric effluent limitations and monitoring requirements,
both of which may be new to the large number of construction sites
throughout the country. EPA would like to issue the next CGP
implementing these requirements as soon as possible. By promulgating a
final CGP that incorporates the C&D ELG by June 30, 2011 EPA will
assist State agencies that must reissue their permits in the next few
years and incorporate the C&D ELG into their permits.
One commenter further recommended that EPA make modifications to
the 2008 CGP in addition to the one-year extension of the permit. This
commenter specifically recommended that EPA take the opportunity to
streamline the CGP and the process for authorizing dischargers, such as
through a simplified option for single lot construction projects, a
simplified qualified local program option, and a certification of no
pollutant discharge added to the permit. EPA is aware of the issues
that the commenter has raised; however, EPA is not inclined to make
further modifications to the 2008 CGP at this time beyond the one-year
extension. The expiration date of the 2008 CGP is the only issue for
which EPA proposed a modification; EPA believes the issues raised by
the commenter, which will require a significant amount of time to
consider for incorporation into the permit, are best contemplated for
the new permit to be issued prior to June 30, 2011.
D. 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
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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 above, any NPDES permit issued after the effective date
of the C&D rule, whether issued by EPA or an authorized state, must
incorporate the substantive technology-based requirements of the rule
into the permit. The effective date of the C&D rule is February 1,
2010. Therefore, EPA's next permit, which will be issued after the
effective date of the C&D rule, will require that the requirements of
the rule be incorporated into the permit. While as discussed above, EPA
wants to issue a CGP that incorporates the C&D ELG as soon as possible
in order to provide guidance to state permitting authorities, today's
one-year extension is necessary due to EPA's judgment that an extension
of one year is needed to provide sufficient time to incorporate the new
C&D rule requirements, provide guidance to state permitting
authorities, and to be able to manage the additional actions and
initiatives that are being undertaken at the same time by the Agency.
Without the one-year extension, EPA fears that it would be left with an
inadequate amount of time to issue a new CGP, placing potentially
thousands of construction projects at risk of discharging without an
effective stormwater permit.
Prior to the extension, the 2008 CGP would have expired on June 30,
2010, giving EPA approximately seven months to propose and finalize a
new CGP. In EPA's judgment, the seven-month period would have been
insufficient to properly draft new requirements that reflect the C&D
rule, and to modify these permit conditions in response to public
comments. The seven-month timeframe to propose and finalize a new
permit would have been 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 was
typical, that permit required almost three years to finalize after the
proposed permit was published. 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, which 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.
While a seven-month schedule to finalize a new CGP would be
impracticable under the circumstances, as discussed above, what would
have made this period of time even more challenging is the
incorporation of the new Federal C&D rule requirements into the general
permit. The C&D rule has introduced several concepts that may be new to
most construction sites, including the requirement for certain sized
construction sites to comply with a numeric effluent limitation for
turbidity. Additionally, the non-numeric effluent limitations in the
C&D ELG will need to be properly translated into permit conditions and
modified based on public comments received. The additional one-year
extension will ensure that the Agency has sufficient time to accomplish
these tasks.
Also weighing heavily in favor of extending the expiration date of
the 2008 CGP are the risks associated with failing to issue a
replacement permit prior to the 2008 CGP's original expiration date. If
EPA fails to issue a new CGP before the expiration of the 2008 CGP, no
new construction projects would be able to be eligible for coverage by
the 2008 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. EPA is unwilling to risk the
possibility of such delays. The one-year extension to the 2008 CGP's
expiration date will provide the Agency with the time needed to issue a
new permit, without any gaps in permit coverage.
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
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information'' and that information was not available at the time of
permit 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 received since issuance of the 2008
CGP in July 2008, in terms of the new actions EPA is planning or
undertaking that are putting new demands on the Agency's available
resources in the NPDES stormwater program. New actions and the
resulting resource demands have come about as a result of EPA's desire
to respond to the 2008 National Research Council report, Urban
Stormwater Management in the United States (see https://www.epa.gov/npdes/pubs/nrc_stormwaterreport.pdf), and to take action under the
President's May 2009 Executive Order on Chesapeake Bay Protection and
Restoration (see https://www.whitehouse.gov/the_press_office/Executive-Order-Chesapeake-Bay-Protection-and-Restoration/). Related to
these efforts, EPA has announced its intention to initiate a national
rulemaking to establish a program to reduce stormwater discharges from
new development and redevelopment, and to make other regulatory
improvements to strengthen its stormwater program. Refer to https://www.epa.gov/npdes/stormwater/rulemaking. EPA's meeting these new
demands, while implementing new Federal requirements for the
construction and development industry, is not practical in a seven-
month time period. Additionally, at the time of the 2008 CGP was
issued, EPA did not know the final content of the C&D ELG. 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: January 20, 2010.
Curt Spalding,
Regional Administrator, EPA Region 1.
Dated: January 20, 2010.
Carl-Axel P. Soderberg,
Division Director, Caribbean Environmental Protection Division, EPA
Region 2.
Dated: January 20, 2010.
Barbara A. Finazzo,
Division Director, Division of Environmental Planning & Protection, EPA
Region 2.
Dated: January 20, 2010.
Jon M. Capacasa,
Director, Water Protection Division, EPA Region 3.
Dated: January 20, 2010.
Timothy C. Henry,
Associate Director, Water Division, EPA Region 5.
Dated: January 20, 2010.
Miguel I. Flores,
Director, Water Quality Protection Division, EPA Region 6.
Dated: January 20, 2010.
William A. Spratlin,
Director, Wetlands and Pesticides Division, EPA Region 7.
Dated: January 20, 2010.
Stephen S. Tuber,
Assistant Regional Administrator, Office of Partnerships & Regulatory
Assistance, EPA Region 8.
Dated: January 20, 2010.
Alexis Strauss,
Director, Water Division, EPA Region 9.
Dated: January 20, 2010.
Michael A. Bussell,
Director, Office of Water and Watersheds, EPA Region 10.
[FR Doc. 2010-1743 Filed 1-27-10; 8:45 am]
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